JUDICIAL  SETTLEMENT 

OF 

INTERNATIONAL   DISPUTES 


<  ()\1  Ki:rN(   E  AT  WASHINGTON 
DECEMBER  15-17.   1O1O 


PROCEEDINGS 


OF 


INTERNATIONAL  CONFERENCE 


UNDER  THE  AUSPICES  OF 


AMERICAN  SOCIETY  FOR  JUDICIAL  SETTLE- 
MENT OF  INTERNATIONAL  DISPUTES 


DECEMBER  15-17,  1910 
WASHINGTON,  D.  C 


THE  WAVERLY  PRESS 

BALT1MORK,  KD.,  U.S.A. 

PRICE  $1.00 


AMERICAN   SOCIETY   FOR  JUDICIAL  SETTLEMENT    OF 
INTERNATIONAL   DISPUTES 

OFFICERS 

Honorary  President,  WILLIAM  HOWARD  TAFT. 

President,  JAMES  BROWN  SCOTT,  Washington,  D.  C. 

V ice-President,  JOHN  HAYS  HAMMOND,  Washington,  D.  C. 

Secretary,  THEODORE  MARBURG,  Baltimore,  Md. 

Treasurer,  J.  G.  SCHMIDLAPP,  Cincinnati,  O. 

ADVISORY  COUNCIL 

LYMAN  ABBOTT,  New  York. 

EDWIN  A.  ALDERMAN,  Virginia. 

JAMES  B.  ANGELL,  Michigan. 

SIMEON  E.  BALDWIN,  Connecticut. 

RICHARD  BARTHOLDT,  Missouri. 

ALEXANDER  GRAHAM  BELL,  Washington,  D.  C. 

R.  L.  BORDEN,  Ottawa,  Ont 

THEODORE  E.  BURTON,  Ohio. 

JOAQUIN  D.  CASASUS,  Mexico  City,  Mexico 

GEORGE  E.  CHAMBERLAIN,  Oregon. 

WINSTON  CHURCHILL,  New  Hampshire. 

GEORGE  B.  CUTTEN,  Wolfville,  N.  S. 

WILUAM  R.  DAY,  Ohio. 

JACOB  M.  DICKINSON,  Washington,  D.  C. 

ANDREW  S.  DRAPER,  New  York. 

CHARLES  W.  ELIOT,  Massachusetts. 

CHARLES  E.  FENNER,  Louisana. 

WILLIAM  DUDLEY  FOULKE,  Indiana. 

JAMES  CARDINAL  GIBBONS,  Maryland. 

GEORGE  GRAY,  Delaware. 
CHARLES  NOBLE  GREGORY,  Iowa. 

PETER  S.  GROSSCUP,  Illinois. 

JOSEPH  F.  JOHNSTON,  Alabama. 

DAVTD  STARR  JORDAN,  California. 

HARRY  PRATT  JUDSON,  Illinois. 

WILLIAM  H.  KING,  Utah. 

GEORGE  W.  KIRCHWEY,  New  York. 

PHILANDER  C.  KNOX,  Washington,  D.  C. 

CHARLES  F.  LIBBY,  Maine. 
FRANCIS  B.  LOOMIS,  Washington,  D.  C. 

ill 


IV  OFFICERS 


HORACE  H.  LURTON,  Tennessee. 

R.  McBRiDE,  Victoria,  B.  C. 

PABLO  MACEDO,  Mexico  City,  Mexico. 

CHARLES  MARCIL,  Ottawa,  Ont. 

SIDNEY  E.  MEZES,  Texas. 

S.  C.  MITCHELL,  South  Carolina. 

FRANCIS  G.  NEWLANDS,  Nevada. 

L.  OPPENHEIM,  Cambridge,  England. 

THOMAS  NELSON  PAGE,  Washington,  D.  C. 

WALTER  H.  PAGE,  New  York. 

W.  PETERSON,  Montreal. 
SIR  THOMAS  RALEIGH,  London,  England. 

WHITELAW  REID,  London,  England. 
WILLIAM  RENWICK  RIDDELL,  Toronto,  Ont. 

URIAH  M.  ROSE,  Arkansas. 

A.  C.  RUTHERFORD,  Edmonton,  Alberta. 

WALTER   SCOTT,   Regina,   Saskatchewan. 

ALBERT  SHAW,  New  York. 

HOKE  SMITH,  Georgia. 

ROBERT  STRANGE,  North  Carolina. 

SIR  CHARLES  HIBBERT  TUPF'ER,  Vancouver,  B.  C. 

GEORGE  TURNER,  Washington. 

CHARLES  R.  VAN  HISE,  Wisconsin. 

BENJAMIN  IDE  WHEELER,  California. 

WILLIAM  ALLEN  WHITE,  Kansas. 

GEORGE  G.  WILSON,  Rhode  Island 

PRINCE  DE  CASSANO,  Italy. 


Membership:  Life  $100;  Sustaining,  $10  a  year;  Annual,  $i  a  year.    Remit  to  treas- 
urer, J.  G.  Schmidlapp,  Cincinnati,  U.  S.  A. 
Address  inquiries  to  secretary,  Theodore  Marburg,  Baltimore,  U.  S.  A. 


PROGRAM 

FIRST  SESSION 

Thursday  Evening,  December  Fifteenth 
EIGHT  O'CLOCK. 

JAMES  BROWN  SCOTT,  Presiding  Officer. 
JAKES  CARDINAL  GIBBONS, 

Invocation. 

THE  MEXICAN  AMBASSADOR, 

The  Juridicial  Character  of  an  International  Permanent  Court. 
HON.  Exnru  ROOT,  United  States  Senator  from  New  York. 

The  Importance  of  Judicial  Settlement. 
HON.  WILLIAM  RENWICK  RIDDELL,  Justice    King's  Bench  Division,  High   Court  of 

Justice,  Ontario. 

The   International   Relations   Between   the    United  States  and  Canada. — an  Histor- 
ical Sketch. 
BENJAMIN   IDE    WHEELER,  President,  University  of  California. 

The  Advance  from  Force  to  Reason. 
HON.  JOHN  W.  FOSTER,  former  Secretary  of  State. 

Were  the  Questions  Involved  in  the  Foreign  Wars  of  the  United  States  of  Such  a  Na- 
ture That  They  Could  Have  Been  Submitted  to  Arbitration  or 
Settled  Without  Recourse  to  War  ? 

ANDREW  CARNEGIE. 
The  Moral  Issue  in  War. 

SECOND  SESSION 
Friday  Morning,  December  Sixteenth 
TEN  O'CLOCK. 

THEODORE  MARBURG,  Presiding  Officer. 
HON.  HENRY  B.  BROWN,  Associate  Justice  United  States  Supreme  Court,  Retired. 

Interstate  Controversies  in  the  Supreme  Court  of  the  United  States. 
FREDERIC  D.  MCKENNEY,  Counsel  of  the   United  States  in  the  Orinoco  Steamship 

Arbitration. 
Objections  to  the  Present  Hague  Court. 

ALPHEUS  H.  SNOW. 
The  Development  of  the  American  Doctrine  of  Jurisdiction  of  Courts  over  States. 

EUGENE  WAMBAUGH,  Professor  of  Law,  Harvard  University. 
Why  the  Growth  of  Law  is  Aided  by  Courts  More  than  by  Commissions. 


VI  PROGRAM 

JACKSON  H.  RALSTON,  Agent  of  the  United  States  in  Pious  Fund  Arbitration 
Some    Considerations   as    to    International  Arbitral  Courts. 

HON.  HENRY  B.  F.  MACFARLAND. 

The  Difficulties  in  the  Way  of  the  Success  of  our  Object. 
CHARLES  NOBLE  GREGORY,  Dean,  College  of  Law,  Iowa  State  University 
Aviation  As  Affecting  the  Judicial  Settlement  of  International  Disputes. 

THIRD  SESSION 

Friday  Evening,  December  Sixteenth 

EIGHT  O'CLOCK. 

HON.  OSCAR  S.  STRAUS,  Presiding  Officer. 
THE  MINISTER  OF  THE  NETHERLANDS, 

Holland  as  an  International  Host. 

HON.  JOSEPH  H.  CHOATE,  Formerly  Ambassador  to  Great  Britain. 

TheCourtof  Arbitral  Justice  as  Recommended  by  the  Second  Hague  Conference. 

FRANCIS  W.  HIRST,  Editor  of  the  Economist,  London, 

The  Arbiter  in  Council. 

HON.  ANDREW  J.  MONTAGUE,  Formerly  Governor  of  Virginia. 

The  Supreme  Court  as  a  Prototype  of  an  International  Court. 

HON.   SIMEON  E.  BALDWIN,  Governor-Elect  of  Connecticut 

Evolution  of  the  International  Court. 
HON.  FRANCIS  B.  Looms,  Formerly  Secretary  of  State  ad  interim. 

The  Price  of  Peace. 

DAVID  STARR  JORDAN,  President  Leland  Stanford,  Jr.,  University. 
The  Waste  of  Nations. 


FOURTH  SESSION 

Saturday  Morning,  December  Seventeenth 

TEN  O'CLOCK. 

HON.  SIMEON  E.  BALDWIN,  Presiding  Officer. 

CHARLES    W.    ELIOT,  President  Emeritus,  Harvard  University. 

Defects  of  Arbitration  as  a  Means  of  Settling  Disputes. 

FREDERICK  N.  JUDSON, 

The  Jurisdiction  of  the  Supreme  Court  of  the  United  States  Over  the  Controversies 

of  the  States  a  Prototype  of  the  International  Court  of  Arbitral  Justice. 

HON.  WILLIAM  DUDLEY  FOULKE,  President,  National  Municipal  League. 

Concentration  of  Effort  upon  Judicial  Settlement  of  International  Disputes. 

REAR  ADMIRAL  CHAS.  H.  STOCKTON,  U.  S.  N.,  Retired.    President,  George  Washington 

University. 
Some  Reasons  Why  Judicial  Methods  for  Settlement  of  International  Disputes  are 

Superior  to  Other  Methods. 

HARRY   PRATT   JUDSON,  President  University  of  Chicago. 
Between  Diplomacy  and  War 


PROGRAM  Vll 

EDWIN  GINN. 

Some  of  the  Things  That  Must  be  Done  in  Order   to   Secure   a   Permanent  Judicial 
Court  for  the  Settlement  of  International  Difficulties. 

BANQUET 
Saturday  Evening,  December  Seventeenth 

SEVEN  O'CLOCK. 
GENERAL  STEWART  L.  WOODFORD,   Toastmaster. 

SPEAKERS: 

THE  PRESIDENT  OF  THE  UNITED  STATES. 

THE  FRENCH  AMBASSADOR. 

HON.  JOSEPH  H.  CHOATE. 

MAJOR-GENERAL  FREDERICK  D.  GRANT,  U.S.A. 

HON.  RICHARD  BARTHOLDT. 
HON.  MARTIN  W.  LITTLETON. 

THOMAS  NELSON  PAGE. 
HON.  W.  BOURKE  COCKRAN. 


SALIENT  THOUGHTS  OF  THE  CONFERENCE 

[INTRODUCTORY]1 

BY 
THEODORE  MARBURG 


Although  the  peace  movement  is  still  a  movement  of  intel- 
lectuals it  is  no  longer  confined  to  idealists.  That  fact  is  amply 
illustrated  by  the  personnel  of  the  congress  held  at  Washington, 
December  15-17,  1910,  under  the  auspices  of  the  American  So- 
ciety for  Judicial  Settlement  of  International  Disputes. 

The  various  groups  of  practical  men  in  close  touch  with  affairs 
—legislators,  statesmen,  educators  and  business  men — who 
addressed  the  congress  were  likewise  liberally  represented  in  the 
crowded  and  interested  audiences  of  the  congress.1 

The  explanation  of  this  change  in  the  personnel  of  the  peace 
workers  lies  partly  in  the  fact  that  the  growing  waste  of  armaments 
has  projected  this  question  into  the  arena  of  practical  politics; 
partly  in  the  actual  results  accomplished  by  certain  existing  in- 
stitutions, notably  those  set  up  at  The  Hague;  together  with 
the  manifest  need  of  additional  institutions  of  a  simple  nature 
which  it  is  folly  to  continue  without.  Among  the  latter  that 

'Portions  of  the  Introduction  arc  printed  in  the  American  Political  Science  Review  for 
May,  IQII. 

'Among  the  speakers  at  the  congress  will  be  found  the  President  of  the  United  States, 
two  ex-Secretaries  of  State,  the  presidents  of  three  of  our  leading  universities  and  the 
president-emeritus  of  another,  an  ex-governor  of  Virginia,  the  governor-elect  of  Connecti- 
cut, former  members  of  our  own  diplomatic  service,  the  heads  of  three  important  foreign 
legations  at  Washington,  present  and  former  members  of  Congress,  and  several  men 
foremost  in  American  industry  and  commerce. 

iz 


X  JUDICIAL   SETTLEMENT 

which  in  the  minds  of  many  men  will  do  more  to  make  war 
difficult  than  any  institution  thus  far  existing  or  suggested  is  a 
true  international  court  of  justice.  It  was  toward  the  problem 
of  such  a  court — to  supplement,  not  to  supplant,  the  existing 
Permanent  Court  of  Arbitration  at  The  Hague — -that  the  atten- 
tion of  the  Congress  was  mainly  directed. 

The  chief  aim  of  the  Society  was  declared  to  be  an  international 
court  which  shall  be  permanent  and  shall  be  composed  of  judges 
by  profession  as  distinguished  from  the  present  tribunals  of 
arbitration  which  are  temporary  and  which  are  composed  only 
partly  of  judges  and  partly  of  diplomats  and  statesmen  not  neces- 
sarily trained  in  the  law.  The  attraction  which  the  very  existence 
of  the  court  will  exert,  and  the  impulsion  which  public  opinion  will 
supply,  should  together  result  in  the  submission  of  cases  to  the 
court  more  and  more  freely  until  the  court  is  set  fully  in 
motion;  exactly  as  the  Supreme  Court  of  the  United  States, 
after  considerable  delay,  and  the  Permanent  Court  of  Arbitration 
at  The  Hague,  a  century  later,  were  both  happily  set  in  motion 
by  these  same  two  forces.  The  judgment  of  a  true  court  of 
justice  properly  constituted  should  meet  with  "ready  and  univer- 
sal acceptance"  and  "the  resultant  peace  will  be  permanent 
because  just  and  because  based  upon  law  and  its  just  interpre- 
tation."8 

The  great  usefulness  of  the  existing  Hague  conventions,  par- 
ticularly the  Permanent  Court  of  Arbitration,  is  amply  illustrated 
by  the  Affairs  of  Venezuela  (1904)  and  the  Casablanca  affair 
(1909)  in  which  acute  situations,  the  one  involving  national 
policy  and  the  other  supposedly  involving  national  honor,  were 
cleared  up  by  submitting  the  cases  to  The  Hague  Court.  The 
Newfoundland  Fisheries  dispute  between  Great  Britain  and  the 
United  States,  a  case  which  diplomacy  had  vainly  attempted  to 
settle  for  the  greater  part  of  a  century,  was  disposed  of  by  The 
Hague  Court  in  a  few  weeks  (1910).  The  very  existence  of  The 

*Scott. 


SALIENT  THOUGHTS  XI 

Hague  Court  is  "an  international  question-mark"  when  men  are 
inclined  to  war.  To  an  increasing  extent  the  nations  search  their 
own  hearts.  They  ask  themselves  whether  the  popular  pas- 
sion is  justified,  whether  the  sins  of  the  few  provoking  agents 
can  properly  be  visited  upon  the  innocent  many  as  invariably 
happens  in  war,  and  whether,  after  all,  the  dispute  is  not  capable 
of  peaceful  solution  by  some  existing  practice  or  institution. 
"  Thus  The  Hague  conventions  are  bringing  about  a  state  of  mind 
.  .  .  which  makes  war  hard  and  peace  easy."4 

The  fertile  mind  of  ancient  Greece,  to  which  the  world  owes 
so  much  in  the  field  of  politics,  was  not  dead  to  the  advantages 
of  arbitration.5  Arbitration  was  practiced  between  the  Greek 
states,  and  the  King  of  Sparta  is  credited  with  the  observation 
that  "it  is  impossible  to  take  as  a  transgressor  him  who  offers  to 
lay  his  grievance  before  a  tribunal  of  arbitration."  Rome  re- 
jected the  institution  because  she  regarded  herself  as  the  sov- 
ereign of  the  world  declining  to  accept  other  nations  as  her  equal. 
In  the  middle  ages  the  Pope  not  only  was  instrumental  in  having 
arbitration  clauses  introduced  into  treaties  but  boldly  assumed 
the  right  to  act  as  arbiter.  In  1623  fimeric  Grace"  proposed  set 
tling  all  international  differences  by  reference  to  a  permanent 
assembly — with  its  seat  in  Venice — to  be  composed  of  the 
representatives  of  all  the  Eastern  and  Western  nations;  while 
Grotius  in  his  War  and  Peace  (1625)  advocated  their  adjustment 
by  a  congress  of  disinterested  powers  with  authority  to  impose 
its  will  on  the  disputants.8 

A  court  to  decide  controversies  between  states  actually  ap- 
peared for  the  first  time  in  history  in  the  form  of  the  Supreme 
Court  of  the  United  States,  which  nation  is  "a  congeries  of  in- 
dependent and  autonomous  States  with  full  rights  of  sovereignty 

«Ralston. 

•Brown. 

•Do. 


Xll  JUDICIAL  SETTLEMENT 

except  so  far  as  each  has  delegated  to  the  general  government 
certain  powers  essential  to  a  unified  existence."7 

In  its  legislative  branch  the  federal  government  is  one  of 
enumerated  powers.  Not  so  in  its  judicial  branch,  since  the 
constitution  has  vested  in  the  Supreme  Court  the  entire  judicial 
power  of  the  nation.  That  tribunal  sits  as  "an  international  as 
well  as  a  domestic  tribunal"  and  applies  "Federal  law,  State 
law  and  international  law  as  the  exigencies  of  the  case  demand." 
In  this  way  it  settles  controversies  which  elsewhere  lead  to  war.8 

A  survey  of  the  cases  hi  the  Supreme  Court  of  the  United 
States  involving  disputes  between  states — boundary  and  other 
— develops  the  significant  fact  that  compulsory  process  has  not 
been  required  to  enforce  the  decrees  of  the  court.  This  obser- 
vation falls  when  controversies  of  a  burning  nature  array  a 
large  number  of  states  on  one  side  against  a  large  number  on  the 
other;  "It  was  monstrous  to  suppose  that  a  universal  agitation 
could  be  quieted  down  by  the  opinion  of  a  majority  of  nine  men."3 

Differences  of  religion  and  race  make  the  problem  of  a  high 
court  before  which  all  the  nations  shall  on  occasion  yield  their 
sovereignty  much  more  difficult  than  was  the  problem  of  a  Supreme 
Court  for  a  group  of  states  like  the  United  States  bound  by  ties 
of  a  common  language  and  common  institutions,10  but  that 
which  offers  the  greatest  obstacle  is  "the  conflicting  interests 
of  the  nations,  always  more  selfish  than  the  best  of  their  citi- 
zens."11 

The  development  of  the  American  doctrine  of  the  jurisdiction 
of  courts  over  states  is  traced  from  the12  early  colonial  period 
in  which  the  mother  country  was  conceded  to  have  only  a  "leader- 
ship in  judgment "  (the  Greek  attitude)  as  opposed  to  the  actual 

7Brown. 

*F.  N.  Judson. 

'Brown. 

10  Brown. 

"Macfarland. 

"  Snow. 


SALIENT  THOUGHTS  Xlll 

power  to  command  (the  imperiumof  the  Latins).  It  was  out  of 
this  conception  that  the  practice  grew  of  binding  our  governments 
by  written  constitutions  regarded  as  emanating  from  the  people. 

About  the  time  the  colonies  were  being  founded  the  belief  that 
courts  could  successfully  exercise  jurisdiction  over  states  was 
markedly  strengthened  by  the  case  of  the  Postnati  which  de- 
termined the  status  of  Scots  in  England  after  the  accession  of 
James  VI  of  Scotland  to  the  throne  of  England  as  James  I.  The 
significant  features  of  this  case  were  that  the  court,  although 
nominally  a  conference  between  the  Lords  and  Commons  to 
which  the  judges  of  England  were  invited  as  counsellors,  was  in 
fact  an  extraordinary  Tribunal;  that  the  case  was  argued  "from 
the  standpoint  of  the  civil  law, '  the  law  of  nations  and  of  reason, ' 
the  history  of  nations  and  the  common  law;"  that  it  settled  a 
dispute  between  England  and  Scotland;  and  that  it  recognized 
a  supreme  law  common  to  England  and  to  the  countries  con- 
nected with  her  politically.13 

Disputes  between  the  colonies  or  between  a  colony  and  England 
were  habitually  referred  to  tribunals  in  England,  the  establish- 
ment and  maintenance  of  which  tribunals  the  colonies  were  will- 
ing to  entrust  to  England.  Therefore,  it  was  natural  that  when 
the  American  colonies  became  independent  of  England,  they 
should  provide,  first — under  the  articles  of  confederation — a 
voluntary  tribunal  to  settle  disputes  between  states,  especially 
constructed  for  each  case,  and  later — under  the  Constitution— 
a  permanent  Supreme  Court  which  should  have  jurisdiction  of 
such  disputes. 

It  is  the  conception  of  a  "supreme  universal  law  securing  the 
fundamental  rights  of  the  individual  against  all  government," 
which  is  the  basis  of  the  indissoluble  Union  of  the  United  States 
of  America;  which  has  governed  the  conduct  of  local  courts  in 
America,  in  England  and  elsewhere,  as  well  as  of  the  Supreme 
Court  of  the  United  States;  and  which  may  prove  "the  most 

"Snow. 


XIV  JUDICIAL   SETTLEMENT 

efficient  bond  of  union"  among  the  nations  of  the  world  if  there 
is  set  up  an  international  supreme  court.  "The  test  of  the  inter- 
national character  of  a  court  is  not  whether  it  is  established  by 
the  nations,  but  whether  it  administers  a  law  which  is  supreme 
over  the  nations."14 

The  decisions  of  the  courts  as  a  source  of  law  are  recalled  as  a 
most  urgent  reason  why  the  Permanent  Court  of  Arbitration  at 
The  Hague  should  be  supplemented  by  a  true  international 
court  of  justice.18  Such  a  court,  dealing  with  various  systems  of 
law,  would  perhaps  not  build  up  the  law  as  readily  as  a  court  gov- 
erned by  the  principles  of  the  English  Common  Law  exclusively; 
but  while  in  theory  Roman  law  courts  are  not  governed  by  pre- 
vious decisions,  they  do  in  point  of  fact  constantly  yield  to  pre- 
cedent. In  contrast  to  the  body  of  judge-made  law  which  arises 
wherever  true  courts  of  justice  exist  is  the  barrenness  of  the  arbi- 
tration tribunal  as  a  source  of  law. 

The  aim  of  a  court  of  arbitration  is  to  compose  differences  and 
the  spirit  of  compromise  which  prevails  as  a  result  thereof  can 
hardly  yield  lasting  principles  of  law  or  justice. 

The  force  of  this  criticism  is  realized  when  we  recall  the  dis- 
pleasure with  which  the  Geneva  Award  is  still  regarded  by  many 
impartial  minds  because  of  its  tendency  to  burden  the  neutral  in 
time  of  war  with  duties  more  or  less  difficult  to  discharge,  instead 
of  placing  the  burdens  of  war  where  they  belong,  i.e.,  on  the  bel- 
ligerent. Sir  Henry  Maine  felt  that  the  principle  laid  down  in 
the  Geneva  Award  must  some  day  be  discarded. 

This  particular  defect  of  arbitration  is  illustrated  by  the  way 
in  which  industrial  arbitration  tends  to  precipitate  conflict  by 
reason  of  the  belief  that  the  principle  of  compromise  will  result  in 
at  least  part  of  the  demands,  however  unjust,  being  granted.  It 
diminishes  the  risks  of  open  strife,  and  while  it  serves  to  compose 
conflicts  actually  begun  "in  the  large  view  and  in  the  long  run 

"Snow. 
"Wambaugh. 


SALIENT  THOUGHTS  XV 

it  rather  encourages  and  promotes  industrial  strife  than  prevents 
it."16  The  reference  should  be  to  some  tribunal  the  controlling 
principle  of  which  is  justice  so  that  the  disputants  would  face 
the  possibility  of  having  their  whole  contention  denied.  This 
tribunal  need  not  necessarily  be  a  court  but  might  well  take  the 
form  of  a  board  of  inquiry  as  in  Canada,  public  opinion  being 
relied  upon  to  force  a  just  settlement  after  the  facts  have  been 
brought  to  light.  "As  a  means  of  preventing  industrial  warfare" 
this  latter  "far  surpasses  every  arbitration  scheme  that  has  ever 
been  tried."17  The  peaceful  settlement  of  such  a  serious  incident 
as  the  Dogger  Bank  affair  (1904)  as  the  result  simply  of  an  in- 
vestigation of  the  facts  conducted  before  the  International 
Commission  of  Inquiry  at  The  Hague  shows  that  this  method  is 
not  less  effective  in  the  international  field. 

The  causes  of  war  were  attributed  to  three  principle  sources 
of  disagreement  involving:  (a)  rights  over  territory,  trade  privi- 
leges, etcetera;  (b)  national  policy  which  may  demand  that  a 
country  be  allowed  to  push  its  trade  in  certain  spheres,  to  acquire 
new  territory  or  influence,  or  "insist  upon  a  certain  course  of 
action  by  other  countries;"  (c)  national  feeling  which  though 
often  deep  and  bitter  and  "  the  most  dangerous  of  all  causes  of 
war  .  .  .  ordinarily  depends  in  the  beginning  upon  differ- 
ent views  regarding  the  specific  rights  of  the  two  countries."18 

The  establishment  of  a  true  international  court  of  justice  is  an 
urgent  need.  Not  only  would  its  operation  at  once  begin  to 
create  authoritative  international  law  in  the  form  of  judge-made 
law,  but  its  very  existence  would  invite  the  codification  of  cer- 
tain spheres  of  international  law  and  the  formal  adoption  of  such 
law  by  the  nations,  just  as  the  Prize  Court,  adopted  by  the  Sec- 
ond Hague  Conference,  led  to  the  London  Conference  (1908-9) 
which  codified  the  law  of  prize. 

"Eliot. 
1TEliot. 
'•Root. 


XVI  JUDICIAL  SETTLEMENT 

The  criticism  has  been  made  that  the  awards  of  courts  of  arbi- 
tration have  been  so  generally  accepted — between  250  and  260 
since  1815 — because  burning  questions  have  not  been  submitted 
to  arbitration:  that  wars  which  have  actually  occurred  were 
over  differences  too  serious  for  peaceable  adjustment.  There  is 
much  force  in  this  criticism,  but  an  impartial  analysis11  of  wars 
in  which  our  own  country  has  engaged  shows  that,  at  least  as 
applied  to  us,  the  criticism  is  far  too  sweeping;  that  many  of  the 
controversies  could  have  been  peaceably  composed  and  that  cer- 
tainly if,  at  the  time  of  these  wars,  an  international  court  had 
existed  and  international  practice  in  regard  to  the  subjects  of 
the  controversies  had  been  as  denned  as  now,  these  wars  could 
have  been  avoided.  Moreover,  nations  which  hesitate  to  enter 
a  court  of  arbitration  because  they  regard  the  interests  at  stake 
as  too  important  to  subject  to  risk  of  compromise,  will  be  more 
willing  to  abide  the  decision  of  a  true  court  of  justice  which  shall 
be  governed  by  established  international  practice,  or,  in  its 
absence,  will  at  least  apply  the  general  principles  of  justice. 

The  objection  to  having  on  an  international  tribunal  nationals 
who  must  be  consciously  or  unconsciously  prejudiced  in  favor 
of  their  country  and  who  act  as  advocates  rather  than  judges  is 
enhanced  by  the  fact  that  the  proper  relation  between  court  and 
counsel  cannot  obtain  between  them  and  the  umpire,  who  is  a 
fellow  judge  and  may  be  addressed  by  them  at  any  time.20 

The  later  system  of  allowing  the  disputants  to  select  non-nation- 
als has  not  overcome  the  difficulty  because  the  non-nationals 
"readily  take  on  the  color — the  attitude  of  mind — of  the  dis- 
putant to  whom  they  owe  their  selection."21  Not  only  should 
no  national  ever  again  be  allowed  to  sit  upon  arbitration  tribu- 
nals, including  The  Hague  Tribunal,  but  there  should  exist  a 
freely  acknowledged  right  to  challenge  any  of  the  proposed  arbi- 

"Foster. 

29Ralston. 

MMcKenney. 


SALIENT  THOUGHTS  xvil 

trators,  for  the  reason  that  the  close  relations  existing  between 
some  nations  make  their  subjects  quite  as  predisposed  to  favor 
the  cause  of  a  friendly  country  as  its  own  national  would  be.22 

Touching  the  question  of  the  powers  of  the  proposed  court, 
it  is  presumed  that  it  would  start  with  very  limited  or  no  juris- 
diction, that  questions  would  be  referred  to  it  voluntarily  or  by 
agreement  of  the  powers  in  pairs  or  otherwise,  but  that  the  grow- 
ing confidence  of  the  world  in  the  probity  and  ability  of  the  court 
would  gradually  lead  to  an  ever  widening  jurisdiction.  An 
ultimate  extreme  position,  involving  jurisdiction  over  the  question 
of  the  very  independence  of  a  state,  is  imagined  as  follows:  "If, 
for  instance,  a  given  nation  should  prove  to  be  so  unruly,  so  anti- 
social and  so  injurious  to  international  order  that  its  existence 
ought  no  longer  to  be  tolerated,  the  powers,  acting  together  on  the 
mandate  of  an  international  judicial  tribunal  rather  than  on  the 
mandate  or  agreement  of  the  foreign  offices,  might  decree  the 
extinction  of  the  national  life  of  the  state  in  question,  just  as  the 
criminal  court  within  a  state  may  decree  the  extinction  of  the  life 
of  a  malefactor.  It  may  easily  be  that  such  a  case  would  never 
happen.  At  the  same  tune  it  is  conceivable;  and  should  it  occur, 
would  it  not  rest  on  a  far  sounder  basis  than  transactions  which 
have  occurred  in  the  past,  and  which,  whatever  their  justification 
in  point  of  equity,  after  all,  have  had  the  appearance  of  simple 
international  spoliation."23 

Moreover,  if  given  jurisdiction  over  internal  disputes  which 
are  acute  and  threaten  widespread  disorder  or  revolution,  an 
international  court  may  at  times  prove  effective  in  avoid- 
ing civil  war;  although,  before  this  much  desired  result  can  be 
reached,  the  nations  must  recognize  as  supreme  and  universal 
the  rule  that  no  political  entity  be  allowed  to  deprive  the  indi- 
vidual of  life,  liberty  or  property  without  due  process  of  law.14 

"Ralston. 

"Harry  Pratt  Juclson. 

"Snow. 


xviil  JUDICIAL   SETTLEMENT 

In  considering  the  difficulties  of  the  composition  of  the  pro- 
posed international  court,  which  would  be  too  unweildy  if  each 
of  the  forty-three  nations  participating  in  the  Second  Hague 
Conference  should  be  allotted  a  permanent  representative  in  the 
court,  we  are  reminded  that  "in  the  discussion  of  the  Supreme 
Court  of  the  United  States  the  then  thirteen  states  were 
considered,  with  all  their  ideas  of  sovereignty  provided  for  in  the 
composition  of  the  United  States  Senate,  as  having  possible 
rights  to  be  represented  in  the  Supreme  Court  of  the  United 
States."25  Owing  to  the  difficulty  of  arriving  at  an  acceptable 
basis  of  representation  in  the  court,  it  may  be  necessary  to  set  up 
a  court  without  the  initial  cooperation  of  the  smaller  states,  the 
high  character  of  the  court  and  its  practical  advantage  being 
relied  upon  ultimately  to  induce  such  states  to  adhere  to  it.2* 

The  fundamental  requisites  for  a  permanently  successful  court, 
were  indicated  as:  "First,  that  its  procedure  be  expeditious  and 
the  rights  of  contending  parties  be  guaranteed;  second,  that  the 
constituents  of  which  it  is  composed  be  respected  by  all  civilized 
nations;  and  lastly,  that  the  principles  it  is  called  upon  to  apply 
be  clear,  and  such  as  shall  have  merited  universal  approval."27 

The  latter  need,  the  need  of  searching  out  the  fundamental 
principles  of  international  law  and  justice,  of  formulating  them, 
and  of  having  them  adopted  by  the  civilized  nations  must  be 
considered  not  only  with  reference  to  the  proposed  court,  but 
with  reference  likewise  to  the  general  good  relations  of  the  world. 
The  lack  of  authoritative  international  law  which  shall  be  bind- 
ing upon  the  nations  and  their  citizens,  as  municipal  law  is  bind- 
ing upon  the  individual,  constitutes  one  of  the  main  hindrances 
to  all-inclusive  treaties  of  arbitration.28  The  new  Carnegie 
Endowment  for  Peace  was  urged  to  initiate  this  work.29 

2BMacfarland. 

26Do. 

27de  la  Barra. 

28Riddell. 

"Page. 


SALIENT  THOUGHTS  XIX 

Although  the  scantiness  of  such  authoritative  international  law 
is  clearly  recognized,  it  is  presumed  that  the  nations  will  none 
the  less  boldly  empower  the  proposed  international  court  to  fall 
back  upon  the  wisdom  of  its  day  and  declare  as  law  what  it  finds 
to  be  the  just  practices  of  men.  Just  as  the  ancient  tribe,  in  the 
absence  of  written  codes,  relied  upon  its  judges  to  declare  the 
law,  so  "  the  great  tribe  of  the  world"  will  set  up  a  body  of  judges 
who  shall  say  "There  is  no  code,  but  this  is  the  wisdom  and  the 
justice  of  the  human  society  to  which  we  belong."30  In  much 
the  same  way  the  Supreme  Court  of  the  United  States  has  pro- 
ceeded to  interpret  and  apply  international  law.  "For  this  pur- 
pose, where  there  is  no  treaty  and  no  controlling  executive  or 
legislative  act  or  judicial  decision,"  says  the  court  itself,  "re- 
sort must  be  had  to  the  customs  and  usages  of  civilized  nations, 
and  as  an  evidence  of  this,  to  the  works  of  jurists  and  commenta- 
tors who,  by  years  of  labor,  research  and  experience,  have  made 
themselves  peculiarly  well  acquainted  with  the  subjects  which 
they  treat.  Such  works  are  resorted  to  by  judicial  tribunals,  not 
for  the  speculation  of  their  authors  as  to  what  the  law  ought  to 
be,  but  for  trustworthy  evidence  of  what  the  law  really  is." 
(In  re.  Paquet  Habana,  175,  U.  S.  677.)" 

By  reason  of  the  growth  of  judge-made  law,  supplemented  by 
codification,  authoritative  international  law  will  be  developed  at 
a  pace  hitherto  unprecedented,  making  text  books  obsolete  at 
short  intervals.  Just  as  the  practical  inventions  have  made 
more  progress  in  the  past  century  than  in  the  whole  previous 
period  of  recorded  history,  so  definitive  international  law,  in  the 
true  acceptation  of  the  term,  is  likely  to  show  greater  develop- 
ment in  the  near  future,  following  the  establishment  of  an  inter- 
national court  of  justice,  than  in  the  whole  past. 

As  international  law  should  adjust  and  reconcile  "not  override 
conflicting  systems"*2  of  law,  the  question  presents  itself  to  what 

"Crosby. 

•"Quoted  by  F.  N.  Judson. 

"Hirst. 


XX  JUDICIAL^SETTLEMENT 

extent  the  proposed  international  court  will  be  expected  to  com- 
bine the  principles  of  the  court  of  law  and  the  court  of  equity, 
and,  until  the  law  becomes  more  definitive,  even  introduce  in  a 
measure  the  spirit  of  compromise  which  characterizes  diplomacy. 
Some  such  broad  character  must  attach  both  to  the  law  and  the 
court  in  order  to  make  them  acceptable  in  the  beginning  and  per- 
haps for  many  years  to  come.  "A  true  international  court  of 
jurists  will  have  an  international  mode  of  interpretation,  a  blend 
perhaps  of  the  civil  law  and  the  common  law,  or  of  Oriental  and 
Western  rules."33 

Although,  "to  our  shame  and  reproach"34  war  is  still  resorted 
to,  as  in  primitive  times,  for  the  settlement  of  international 
disputes,  yet  much  progress  has  been  made  in  the  attitude  of 
nation  toward  nation.  "  God  with  his  mighty  wind  has  shaken 
his  hand  over  the  river  and  men  are  beginning  to  go  dry  shod  on 
the  places  where  once  there  was  no  passage."15  At  the  Second 
Hague  Conference,  all  the  nations  agreed  that  there  should 
be  an  international  court  of  arbitral  justice  and  "when  all  the 
nations  of  the  earth  say  there  ought  to  be,  it  means  that  there 
must  be  and  will  be  such  a  court.  "M  The  governments  are  not 
idle  but  they  need  public  sentiment  back  of  them. 

II 

The  papers  and  discussions  were  confined  in  an  unusual  degree 
to  the  topic  of  the  conference,  namely,  the  need  for,  the  probable 
advantages  of,  and  way  to  secure,  an  international  court  of  jus- 
tice. Most  notable  among  the  exceptions  were:  a  strong  exposi- 
tion of  the  waste  involved  in  preparation  for  war, 37  accompanied 
by  a  less  convincing  analysis  of  the  relation  of  it  to  the  high  cost 

MDo. 

"Stockton. 

"Page. 

MChoate. 

"Cockran. 


SALIENT  THOUGHTS  XXI 

of  living;  and  a  powerful  philippic,  of  the  kind  calculated  to 
arouse  the  public  conscience,  on  the  biological  effects  of  war,  the 
reversed  selection — the  survival  of  the  unfit — which  results  from 
war."  Difficulties  confront  any  nation  which  may  desire  to 
curtail  its  outlay  on  armaments  independently  of  other  nations; 
but  at  the  same  time  we  will  search  the  history  of  states  in  vain 
for  a  parallel  to  the  present  united  folly  of  the  nations  in  "sol- 
emnly casting  into  the  sea  the  treasure  of  their  people,"  the  pro- 
duct of  their  toil,  wrung  from  them  by  taxation  excessively  bur- 
densome to  many.  For  such  parallel  we  are  compelled  to  turn 
to  the  "eccentricities  of  foolish  individuals."39 

The  freedom  of  the  United  States  from  the  danger  of  attack  as 
compared  with  European  countries  leads  to  the  inference  that 
while  we  should  maintain  a  navy,  effective  and  up-to-date,  there 
is  no  excuse  for  attempting  to  rival  the  expensive  armaments  of 
European  nations.  Our  geographical  position  is  such,  our  popu- 
lation so  large,  our  productive  capacity,  agricultural  and  manu- 
facturing, "so  colossal  that  any  nation  which  should  attempt  to 
attack  us,  save  in  her  own  defense,  would  be  guilty  of  that  folly 
with  which  the  gods  visit  alike  men  and  nations  whom  they  wish 
to  destroy."40 

On  the  subject  of  the  biological  effects  of  war,  it  was  remarked 
in  connection  with  the  death-roll  of  a  certain  battle  that  "the 
significance  of  such  events  lies  not  in  the  fate  of  kings,  nor  does  it 
lie  in  the  fate  of  the  men,  nor  yet  in  the  waste  of  their  lives,  nor 
even  in  the  sorrows  of  those  who  loved  them."  Rather  is  it  to 
be  sought  in  the  effect  upon  the  race  through  killing  off  the  bravest, 
the  most  patriotic,  the  most  enterprising,  and  the  best  physi- 
cally.41 

As  pointed  out  by  Lamarck,  the  selective  process,  supposed  to 
be  due  to  the  struggle  between  individuals,  is  modified  as  a 

"Jordan. 
"Cockran. 
"Page. 
"Jordan. 


xxii  JUDICIAL   SETTLEMENT 

source  of  progress  among  men  as  well  as  among  the  lower  animals, 
by  the  more  potent  principle  of  adaptation  to  environment; 
while  the  decreasing  birthrate  in  highly  civilized  countries  cer- 
tainly does  away  with  the  old  argument  that  war,  like  pestilence, 
is  needed  to  keep  down  numbers.42 

The  perfection  of  air  craft  of  late  has  been  so  rapid  and  the 
wholesale  destruction  of  life  and  property  which  may  result  from 
their  use  in  war  so  patent  that  they  can  no  longer  be  disregarded 
by  the  disciples  of  international  peace.  "The  wildest  dreams  of 
aviation  are  less  than  the  accomplished  fact  a  month  later.'"3 
If  the  present  rate  of  progress  continues  it  will  be  but  a  short  time 
before  aeroplanes  as  well  as  airships  will  be  able  to  penetrate 
to  the  very  heart  of  the  largest  countries.  Government  build- 
ings, works  and  stores,  gas  and  electric  light  plants,  all  could  be 
destroyed.  "The  capital  and  every  prominent  town  could  be 
reduced  to  helplessness  and  panic  .  .  about  in  the  condition 
of  San  Francisco  after  the  fire  and  earthquake."  The  whole 
territory  of  a  nation  being  open  to  attack,  every  centre  of  popu- 
lation in  constant  danger,  there  should  be  less  eagerness  to  rush 
to  war  than  under  the  old  conditions  when  only  a  small  fraction 
of  the  people  were  on  the  firing  line.43 

Another  device  for  abating  strife  among  nations  is  neutral- 
ization. It  has  been  applied  to  Switzerland,  Belgium,  and 
Luxemburg  long  enough  to  prove  its  value  .  The  fact  that  certain 
great  powers  stood  ready  to  forbid  any  violation  of  the.  indepen- 
dence or  territorial  integrity  of  these  states  has  certainly  acted 
as  an  effective  deterrent  to  powerful  neighbors  who  otherwise 
might  have  been  tempted  to  commit  acts  of  aggression  against 
them.  The  world  is  probably  destined  to  see  a  great  extension 
of  this  principle  not  only  with  regard  to  small  independent  powers 
but  possibly  with  regard  to  certain  areas  or  posesssions  of  some  of 

^Jusserand. 

"Gregory. 

«Do. 


SALIENT  THOUGHTS  XX111 

the  great  powers.  But  the  principle  is  not  capable  of  universal 
application.45  The  progress  of  the  world  may  be  retarded  by 
the  neutralization  of  countries  where  backward  conditions  pre- 
vail. It  might  be  well  to  lay  down  some  such  principle  as  this, 
e.g.,  that  neutralization  is  applicable  with  advantage  only  to 
countries  which  have  fairly  just  laws  administered  with  some 
approximation  of  justice. 

The  Interparliamentary  Union,  which  has  met  annually  for  the 
past  seven  years,  is  a  body  of  over  2000  present  and  former  mem- 
bers of  the  parliaments  of  the  world  "bending  every  energy  to 
substitute  law  and  justice  for  peace."46 

It  is  suggested  that  the  Interparliamentary  Union  should  be 
reorganized  by  providing  for  a  less  unwieldly  number  of  members 
who  shall  be  chosen  and  especially  delegated  by  the  home  parlia- 
ments. Add  to  this  provision  an  agreement  on  the  part  of  the 
home  parliaments  that  all  measures  adopted  by  the  Interparlia- 
mentary Union  shall  be,  not  necessarily  approved  by  them,  but 
at  least  considered  and  given  a  chance  to  be  approved,  and  a 
great  step  will  be  taken  toward  giving  expression  to  the  inter- 
national will.  Since  over  against  this  quasi-popular  branch  of 
an  international  legislature,  we  have  in  embryo  an  upper  house 
in  the  form  of  the  Hague  Conferences,  the  members  of  which  are 
delegated  by  the  executive  branches  of  the  home  governments, 
it  is  not  unlikely  that  in  the  course  of  time  these  two  bodies  will 
evolve  a  true  international  parliament.  The  origin  of  most  of 
our  sound  institutions  is  in  the  needs  of  the  community.  There 
is  very  great  need  of  an  institution  which  shall  help  to  crystal- 
lize and  give  authority  to  the  more  commonly  accepted  practices 
of  the  world  today  in  international  relations  and  thus  help  build 
up  authoritative  international  law. 

With  regard  to  an  international  force  designed  to  compel  sub- 
mission to  the  decrees  of  the  proposed  court,  it  was  suggested  that 

"Foulke. 
"Bartholdt. 


XXIV  JUDICIAL   SETTLEMENT 

such  a  force  be  formed  by  taking  a  specific  proportion  of  existing 
armaments,  and  allowing  them  to  remain  under  the  control  of  the 
separate  governments,  ready  to  cooperate  when  required.47 
On  the  other  hand,  the  idea  of  employing  military  power  at  all  to 
enforce  the  decrees  of  the  court  was  rejected  because  of  the  many 
obstacles,  including  national  jealousies,  to  the  exercise  of  such 
power.  Public  opinion  was  thought  to  be  a  better  sanction  and  in 
course  of  time  could  be  developed  into  an  effective  sanction.48 
It  is  feared  in  some  quarters  that  an  international  force  may  prove 
an  instrument  of  intolerable  tyranny.49  "Now  that  the  nine- 
teenth century  has  made  the  world  one  neighborhood  and  the 
twentieth  century  is  making  it  a  brotherhood  ....  the 
public  opinion  of  the  world,  which  is  in  advance  of  the  general 
opinion  of  governments,"  will  prove  a  more  effective  sanction  for 
the  decrees  of  an  international  court  than  any  other  coercive 
measures.60 

A  nation  having  agreed  to  submit  a  controversy  to  the  court  is 
not  likely  to  brave  the  adverse  opinion  of  the  world  by  refusing 
to  abide  by  the  decision.51' B2  "In  this  era  of  world  history"  such  a 
course  "is  unthinkable."53 

Questions  of  honor  and  vital  interest  have  hitherto  been 
excluded  by  the  more  powerful  countries  from  the  scope  of 
treaties  for  the  submission  of  future  disputes  to  arbitration. 
So  long  as  these  exceptions  remained,  arbitration  treaties  were 
not  a  guarantee  of  peace,  for  the  double  reason  that  questions 
actually  involving  honor,  etcetera,  might  at  any  time  arise  and 
that  a  nation  bent  on  mischief  might  so  interpret  other  questions. 
It  was  therefore  of  distinct  advantage  to  the  future  peaceful  rela- 

47Ginn. 

"Brown. 

"Stockton. 

BOMacfarland. 

"Cockran. 

"Foulke. 

"Baldwin. 


SALIENT   THOUGHTS  XXV 

tions  of  the  world  when,  earlier  in  the  year,  the  President  of  the 
United  States  declared  that  he  saw  no  reason  why  questions  of 
honor  should  be  so  excluded.  But,  at  the  Washington  conference 
of  the  society,  the  gap  was  completely  closed  by  the  new  pro- 
nouncement of  President  Taft  in  favor  of  an  agreement  which 
shall  serve  to  demonstrate  that  all  questions,  even  such  as  involve 
honor  or  territory,  may  be  safely  referred  to  an  international  arbi- 
tral court.  The  statement  attracted  world- wide  attention;  it  was 
the  subject  of  a  telegram  of  congratulation  from  the  editors 
of  the  leading  Liberal  newspapers  of  England,  and  it  is  likely  to 
lead  to  important  practical  results.  It  must  remain  the  most 
notable  utterance  of  the  congress. 

The  donor  of  the  sum  of  ten  million  dollars  to  the  cause  of  peace 
—which  gift  had  been  announced  on  the  previous  day — made 
only  casual  reference  to  its  possible  application,  preferring  that  the 
trustees  of  the  fund  be  untrammelled  in  the  use  which  they  shall 
make  of  it,  and  addressed  himself  to  the  moral  issue  in  war.  He 
declared  that  "it  was  the  moral  side  of  slavery,  of  buying  and  sell- 
ing men  and  women,  which  finally  brought  about  its  abolition. 
And  so  I  believe  it  will  be  with  war."54 

This  power  of  the  idea,  the  tendency  of  the  Tightness  of  things 
to  assert  itself,  was  not  neglected.  It  is  not  by  men  nor  by  aggre- 
gations of  men  that  the  world  is  really  ruled,  but  by  ideas;  and  the 
idea  of  the  judicial  settlement  of  international  disputes  is  growing 
apace  because  its  basis  is  justice."  "After  all,  what  rules  the 
world,  the  one  thing  that  is  eternal  and  all  powerful,  is  the  intan- 
gible and  the  sentimental."8* 

The  conference  refrained  from  entertaining  and  adopting  resolutions,  believing  that  it 
would  prove  most  useful  by  confining  its  activities  to  a  thorough  discussion  of  the  prob- 
lem before  it.  However,  after  its  close,  a  small  group  of  men  who  had  taken  a  leading 
part  in  it  met  and  drew  up  unofficially  that  which  they  regarded  as  the  consensus  of 
opinion  brought  out  during  the  sessions.  This  declaration  is  as  follows: 


"Carnegie. 
•Pkfe. 

"Root. 


XXVI  JUDICIAL  SETTLEMENT 

1.  The  proposed  international  court  of  justice  should  be  a  development  from  pre- 
vious methods,  something  more  highly  perfected.     Other  peaceful  methods  should  be 
retained  and  applied. 

2.  The  court  should  be  a  court  of  law  and  equity  applying  principles  of  equity  and 
good  conscience,  and  having  regard  to  all  systems  of  law  and  the  .precedents  under  all 
systems;  all  questions,  except  those  of  pure  policy,  to  be  submitted  to  it. 

3.  A  permanent  international  court  should  be  constituted  immediately  by  such  states 
as  desire  it,  leaving  it  open  to  access  of  other  powers  or  to  their  future  adherence. 

4.  Inasmuch  as  the  Supreme  Court  of  the  United  States  is  a  court  for  the  States 
composing  the  American  Union  and  has  repeatedly  decided  controversies  between  them, 
the  origin,  history  and  practical  working  of  that  court  should  be  carefully  studied. 

5.  The  practicability  of  creating  a  sentiment  in  schools,  colleges  and  universities  in 
favor  of  the  settlement  of  international  disputes  by  means   other  than  war  should  be 
considered. 


PROCEEDINGS 

THURSDAY,    FRIDAY   AND    SATURDAY,    DECEMBER 
15,  16  AND  17,  1910 

(The  sessions  of  the  Conference  were  held  at  the  New  Willard 
Hotel,  with  the  exception  of  the  meeting  of  Friday  evening, 
December  16,  which  was  held  at  the  building  of  the  Pan-American 
Union.) 

THURSDAY  EVENING,  DECEMBER  15,  1910 

James  Brown  Scott,  Presiding  Officer 

THE  PRESIDING  OFFICER:  Ladies  and  Gentlemen,  His  Emi- 
nence, James,  Cardinal  Gibbons,  will  pronounce  the  invocation. 

INVOCATION  BY  JAMES  CARDINAL  GIBBONS 

We  thank  Thee,  0  Lord,  that  we  have  peace  within  our  boun- 
daries, and  that  we  have  amicable  relations  with  all  the  nations 
of  the  earth. 

May  we  continue  to  invite  to  our  shores  the  thrifty  sons  and 
daughters  of  Europe.  May  we  extend  to  them  the  right  hand 
of  fellowship,  welcoming  them  as  brothers  and  sisters,  holding 
out  to  them  every  opportunity  of  advancing  their  temporal 
interests,  inspiring  them  with  so  great  an  admiration  for  our 
civil  and  political  institutions,  that  they  may  be  impelled  to  be 
incorporated  with  us,  becoming  "bone  of  our  bone  and  flesh  of 
our  flesh."  And  may  the  immigrants  become  so  enamored  of 
our  country  that  they  will  be  eager  to  exclaim,  in  the  language 
of  Ruth  to  Naomi:  "Where  you  shall  dwell,  we  also  will  dwell; 
your  people  shall  be  our  people,  and  your  God,  our  God." 


2  JUDICIAL   SETTLEMENT 

When  we  contemplate  the  constant,  steady  stream  of  emigrants 
flowing  from  Europe  to  this  land  of  Promise,  not  bent  on  deeds 
of  war,  but  of  peace  and  industry,  not  on  a  mission  of  destruction 
but  of  construction,  joining  hands  with  the  descendants  of  the 
early  settlers  in  developing  the  resources  of  the  country, — when 
we  survey  this  scene,  the  glorious  vision  of  the  Prophet  Isaiah 
is  pictured  before  us:  "Lift  up  Thine  eyes  round  about  and  see! 
All  these  are  gathered  together,  and  they  are  come  to  Thee. 
Thy  sons  shall  come  from  afar,  and  Thy  daughters  shall  rise  up 
at  Thy  side.  Then  shalt  Thou  see  and  abound,  and  Thy  heart 
shall  wonder  and  be  enlarged  when  the  multitude  of  the  Sea 
shall  be  converted  to  Thee,  the  strength  of  the  Gentiles  shall 
come  to  Thee." 

Grant,  O  Lord,  that  the  day  may  be  hastened  when  the  reign 
of  the  Prince  of  Peace  shall  be  firmly  established  on  the  earth, 
when  the  spirit  of  the  Gospel  shall  so  far  sway  the  minds  and 
hearts  of  rulers  and  cabinets,  that  international  disputes  will  be 
decided,  not  on  the  battle-field,  but  in  halls  of  conciliation;  not 
by  standing  armies,  but  by  permanent  courts  of  arbitration;  not 
by  the  sword,  but  by  the  pen  and  voice  of  Wisdom,  which  are 
mightier  than  the  sword. 

May  Thy  servants,  assembled  here  to-night,  deserve  the  title 
promised  by  Christ  to  the  friends  and  advocates  of  peace: 
"Blessed  are  the  peace-makers,  for  they  shall  be  called  the  chil- 
dren of  God." 

ADDRESS  OF  PRESIDENT  JAMES  BROWN  SCOTT 

In  the  absence  of  the  Secretary  of  State.,  who  has  been  detained 
by  official  business,  I  have  both  the  honor  and  the  pleasure  as 
president  of  the  Society  to  welcome  you  to  the  International  Con- 
ference which  the  American  Society  for  Judicial  Settlement  of 
International  Disputes  will  hold  in  the  City  of  Washington  on 
this,  Thursday,  evening,  on  Friday  morning,  Friday  evening,  and 


SCOTT  3 

Saturday  morning  of  the  present  week,  ending  with  a  banquet 
in  the  New  Willard  Hotel,  Saturday  evening,  December  17,  at 
seven  o'clock. 

The  session  of  tomorrow  evening  will  be  held  in  the  building  of 
the  Pan-American  Union,  Seventeenth  Street  and  Potomac  Park. 
The  addresses  of  the  evening  will  be  followed  by  a  reception,  hi 
order  that  the  speakers  and  the  delegates  and  the  people  who  are 
minded  to  be  present  may  meet  and  know  one  another. 

A  very  few  words,  ladies  and  gentlemen,  concerning  the  Society 
and  the  purpose  which  it  has  hi  view,  before  I  call  upon  the 
speakers  of  the  evening. 

The  character  of  the  American  Society  for  Judicial  Settlement 
of  International  Disputes  is  accurately  described  by  its  name. 
It  is  limited  to  a  discussion  of  the  judicial  determination,  as  dis- 
tinguished from  the  arbitral  adjustment,  of  international  contro- 
versies. It  seeks  to  strengthen  sentiment  where  existing,  and 
to  create  sentiment  where  it  does  not  exist,  hi  favor  of  judicial 
settlement.  It  stands  for  a  permanent  court,  as  distinguished 
from  a  temporary  tribunal;  a  court  composed  of  judges  by  pro- 
fession, not  a  tribunal  composed  of  judges  by  mere  appointment. 
It  stands  for  judicial  decision  according  to  principles  of  law,  not 
for  compromise  according  to  the  standards  of  diplomacy.  It 
believes  that  a  line  of  judicial  decisions  will  develop  international 
law  as  judicial  decisions  have  developed  the  common  law,  and 
that  an  international  court  will  do  for  the  family  of  nations  what 
national  courts  have  done  for  each  of  its  members. 

We  are  not  opposed  to  arbitration.  On  the  contrary,  we  favor 
it  individually,  but  arbitration  as  such  falls  beyond  the  scope  of 
our  labors. 

Doubtless  many  of  our  members  would  rejoice  to  see  a  limitation 
of  armament,  perhaps  disarmament,  but  the  Society  as  such 
takes  no  position  upon  these  weighty  and  all-important  ques- 
tions. Our  sole  ami  and  purpose  is  to  secure  a  truly  perma- 
nent court,  a  court  in  session,  composed  of  judges  acting  under  a 


4  JUDICIAL  SETTLEMENT 

sense  of  judicial  responsibility,  ready  to  receive  and  decide  a 
case  when  it  arises,  before  passion  may  have  obscured  the  ques- 
tions of  law  involved  and  embittered  the  relations  of  the  con- 
tending countries. 

We  believe  that  the  mere  existence  of  such  a  court  will  attract 
cases,  that  the  delay  incident  to  the  constitution  of  a  temporary 
tribunal  will  be  avoided,  that  public  opinion  will  compel  the  sub- 
mission of  the  case  when  and  as  it  arises;  that  the  acute  stage  in 
a  controversy  will  thus  be  largely  avoided;  that  the  judgment 
of  the  court,  based  upon  law,  will  meet  with  ready  and  universal 
acceptance;  and  that  each  decision  will  add  to  the  law  of  nations 
and  develop  it  along  judicial  lines. 

We  hope  that  an  international  court  will  lessen  the  causes  of 
public  war,  just  as  national  courts  have  abolished  private  war; 
that  a  less  frequent  resort  to  force  will  destroy  the  justification 
for  and  therefore  the  burden  of  armament;  that  disarmament 
will  be  a  condition  consequent,  not  a  condition  precedent,  to  the 
peaceful  settlement  of  international  differences,  and  that  the  re- 
sultant peace  will  be  permanent  because  it  is  just  and  based,  as 
it  will  be,  upon  law  and  its  judicial  interpretation. 

Such  are  the  purposes  of  this  Society,  and  for  these  reasons  the 
officers  of  the  Society  have  called  this  Conference  in  order  to  pro- 
mote the  cause  for  which  the  Society  stands. 

Ladies  and  gentlemen,  we  have  thought  it  would  be  exceed- 
ingly agreeable  and  gracious  if  the  neighbors  of  the  United 
States,  the  sister  republic  of  the  south  and  the  great  country  to 
the  north,  should  raise  their  voices  in  favor  of  the  pacific  settle- 
ment of  controversies  and  the  maintenance  of  peace.  With  our 
southern  neighbor  we  have  long  been  on  terms  of  peace.  The 
one  war  which  unfortunately  disturbed  friendly  relations  will  be 
discussed  by  a  later  speaker,  and  the  question  considered  whether 
it  might  or  might  not  properly  have  been  avoided.  A  clause  of 
the  treaty  of  peace  concluding  that  unfortunate  war  suggested 
in  no  uncertain  terms  the  arbitration  of  future  difficulties.  A 


DE  LA  BARRA  5 

treaty  recently  concluded  between  Mexico  and  the  United  States 
provides  for  the  arbitration  of  future  differences. 

Mexico,  however,  has  not  been  content  to  advocate  arbitration 
in  theory  but  has  practiced  it  in  fact,  shown  by  the  various  com- 
missions between  the  two  countries  for  the  peaceful  settlement 
of  international  disputes,  and  it  is  the  great  and  abiding  honor 
of  both  republics  to  have  called  into  being  and  to  have  set  in 
motion  the  Permanent  Court  at  The  Hague  by  the  submission 
to  it  in  1902  of  the  Pious  Funds  Case,  an  international  contro- 
versy of  long  standing  between  the  two  nations.  These  two 
countries  again  are  confessing  their  faith  in  arbitration,  for  within 
the  next  few  months  a  difficulty  between  Mexico  and  the  United 
States  concerning  the  ownership  of  certain  territory  on  the  Rio 
Grande  River  will  be  arbitrated. 

It  is,  therefore,  ladies  and  gentlemen,  as  the  representative  of 
a  country  which  has  always  declared  itself  in  favor  of  the  pacific 
settlement  of  international  disputes,  that  I  have  the  honor  and 
the  pleasure  of  introducing  His  Excellency  the  Mexican  Ambas- 
sador who  has  been  specifically  designated  by  his  government  to 
appear  and  represent  his  country  on  this  occasion. 

ADDRESS  OF  THE  MEXICAN  AMBASSADOR 

FRANCISCO  L.  DE  LA  BARRA 

Mr.  President,  Ladies  and  Gentlemen:  It  affords  me  pro- 
found satisfaction  to  have  the  honor  to  express  to  you  the  senti- 
ments of  cordial  appreciation  of  my  government  for  the  lofty 
and  noble  work  in  which  this  most  worthy  association  is  so 
earnestly  engaged.  My  government  is  a  staunch  supporter  of 
those  whose  efforts  are  directed  towards  aiding  in  the  establish- 
ment of  a  permanent  court  of  arbitration,  in  the  constitution  of 
which  the  fundamental  rights  of  states  have  not  been  overlooked ; 
an  institution  which,  because  of  its  very  elements,  is  a  universally 
respected  tribunal. 


6  JUDICIAL   SETTLEMENT 

When  such  an  institution  has  been  established,  free  from  any 
national  or  political  influence,  the  day  will  not  be  far  distant  when 
we  may  in  all  justice  make  our  own  the  generous  optimistic  view 
which  led  the  beautiful  Miranda  in  The  Tempest  to  consider 
humanity  as  perfect,  when  she  averred,  "How  beauteous  man- 
kind is!  0,  brave  new  world  that  has  such  people  in  it!" 

Caliban,  it  is  true,  will  go  on  playing  his  part  of  the  fierce, 
envious  beast,  but  his  onslaughts  will  lose  some  of  their  force, 
because  of  the  great  power  that  science  and  a  far-reaching  prudent 
policy  will  have  brought  to  the  aid  of  good. 

I  regret  very  much  that  his  official  duties  prevent  the  presence 
here  of  the  distinguished  Secretary  of  State  as  our  presiding 
officer.  In  him  we  recognize  the  sound  judgment  of  the  jurist, 
coupled  with  a  clear  knowledge  of  life  as  a  statesman.  These 
traits  make  him  worthy  of  holding  the  high  post  you  have  confided 
to  him,  gentlemen,  at  this  meeting,  where  there  are  gathered 
together  so  many  minds,  and  so  many  hearts,  joined  hi  one  com- 
mon work,  a  work  of  love  and  harmony! 

In  order  that  the  International  Court  of  Arbitration  be  assured 
an  effective  life  as  a  permanent  juridical  institution,  it  is  neces- 
sary that  the  following  fundamental  conditions  be  united  therein: 
First,  that  its  procedure  be  expeditious  and  the  rights  of  the  con- 
tending parties  be  guaranteed;  second,  that  the  constituents  of 
which  it  is  composed  be  respected  by  all  civilized  nations;  and 
lastly,  that  the  principles  it  is  called  upon  to  apply  be  clear,  and 
such  as  shall  have  merited  universal  approval. 

The  first  condition  has  already  been  fulfilled,  thanks  to  the 
work  of  the  Second  Peace  Conference,  resulting  in  the  well 
known  convention.  The  principles  upon  which  it  rests  are 
susceptible  in  some  cases  of  advantageous  modification,  but  such 
as  they  are  established  by  the  convention,  they  serve  their  pur- 
pose. Practice  will  show,  later  on,  the  changes  they  must  un- 
dergo in  order  to  make  international  justice  more  expeditious,  and 
of  easier  and  surer  application. 


DE  LA  BARRA  7 

The  constitution  of  the  court  which  gave  rise  to  so  heated  a 
debate  hi  the  conference  that  it  did  not  permit  the  reaching  of  a 
definite  conclusion  on  this  subject,  will  perhaps  be  agreed  upon 
among  the  powers  before  the  meeting  of  the  next  Conference, 
provided  some  system  or  scheme  is  adopted  that  shall  take  into 
due  consideration  the  principle  of  the  juridical  equality  of  states 
in  accordance  with  the  teaching  of  modern  science. 

The  recognition  by  the  civilized  nations  of  the  fundamental 
principles  of  international  law  and  a  mutual  agreement  as  to  the 
form  in  which  such  principles  should  be  substantially  applied, 
is  the  third  condition  necessary  to  secure  a  useful  and  permanent 
life  to  the  International  Court. 

I  am  well  aware  that  the  complete  codification  of  international 
law  is  a  slow  work,  and  has  to  contend  against  serious  obstacles; 
but  the  spirit  of  harmony  grows  stronger  day  by  day  among 
countries,  either  expressed  hi  the  form  of  treaties  and  conventions, 
or  tacitly  in  universal  practices. 

In  our  day,  one  of  the  principal  aims  of  legal  science  is  to  formu- 
late in  a  clear  and  precise  manner  the  principles  adopted,  to  do 
away  with  the  cause  of  those  international  questions  wherein 
the  real  enemy  is  found  hi  the  form  in  which  thoughts  are  ex- 
pressed. 

In  the  balance  shown  as  the  result  of  the  examination  of  the 
favorable  or  adverse  circumstances  connected  with  the  realiza- 
tion of  your  plans,  the  former  factors  control  and  eventually  will 
conquer,  as  you  have  not  cared  to  remain  in  the  field  of  idealiza- 
tion, like  those  philosophers  who  pretend  to  legislate  for  a  perfect 
humanity,  toiling  like  that  character  in  the  Tales  of  Hoffman, 
who,  seated  before  a  blank  canvas  wielding  a  brush  without 
colors,  imagined  himself  to  be  painting  a  picture.  You  work  in  a 
practical,  efficient  manner,  taking  man  as  he  is  with  his  vices  and 
his  faults,  encouraged  by  the  deep  conviction  that — as  your 
philosopher  William  James,  said — "conscience  goes  ever  unceas- 
ingly on."  Thus  the  world's  conscience  keeps  its  onward  march, 


8  JUDICIAL    SETTLEMENT 

because  it  possesses  a  real  life  which  is  forever  renewed  and  under- 
goes a  continuous  evolution. 

In  conclusion,  allow  me,  ladies  and  gentlemen,  in  expressing 
the  earnest  wishes  of  the  Secretary  of  Foreign  Relations  of 
Mexico  for  a  happy  outcome  of  your  labors,  to  join  with  my  own 
personal  desire  for  the  speedy  arrival  of  an  era — which  is  not  so 
far  distant — when  he  who  has  the  greatest  power  shall  be  the  one 
who  has  the  greatest  sentiment  of  justice. 

THE  PRESIDING  OFFICER  (JAMES  BROWN  SCOTT)  :  Ladies  and 
Gentlemen,  for  centuries  it  was  the  plan  of  the  philosopher  and 
the  hope  of  the  philanthropist  that  some  means  might  be  found 
by  which  international  conflicts  should  be  settled  peacefully  with- 
out a  resort  to  arms,  and  the  dreamers  of  dreams,  philosophers 
and  philanthropists,  proposed  that  the  questions  at  issue  between 
nations  should  be  settled  either  in  conference,  in  diplomatic 
assemblies  or  by  temporary  tribunals  of  arbitration  created  for 
the  express  purpose.  That  which  the  dreamers  of  dreams  have 
dreamed,  and  philosophers  have  planned,  that  which  the  phil- 
anthropists saw  before  them  as  if  in  a  vision,  took  definite  form 
and  shape  in  the  year  1907,  when  our  accomplished  Secretary  of 
State  instructed  the  American  delegation  to  the  Second  Hague 
Peace  Conference  to  propose  a  permanent  court  to  be  composed 
of  judges  who  should  act  under  a  sense  of  judicial  responsibility, 
and  which  court  should  represent  the  various  judicial  systems 
of  the  world.  Pursuant  to  the  instructions  the  delegation,  under 
the  leadership  of  the  Honorable  Joseph  H.  Choate,  introduced 
such  a  proposition,  and  after  weeks  of  discussion  and  debate 
the  Conference  adopted  a  draft  convention  consisting  of  thirty- 
five  articles  for  the  organization,  the  jurisdiction  and  the  pro- 
cedure of  a  permanent  court  of  arbitral  justice,  leaving  it  how- 
ever to  the  nations  to  constitute  the  court  through  diplomatic 
channels,  when  an  agreement  should  be  reached  upon  the  ap- 
pointment of  the  judges. 


ROOT  9 

It  is  my  very  great  pleasure  and  my  very  great  honor,  ladies 
and  gentlemen,  to  present  to  you  the  accomplished  statesman 
who,  as  Secretary  of  State,  issued  the  instructions  of  which  I 
have  spoken,  and  took  the  first  real  and  practical  step  in  this 
world  of  ours  to  realize  the  dreams  of  the  dreamers,  the  plans 
of  the  philosophers  and  the  hopes  of  the  philanthropists,  the 
Honorable  Elihu  Root,  now  United  States  Senator  from  the 
State  of  New  York. 

THE  IMPORTANCE  OF  JUDICIAL  SETTLEMENT 

ELIHU  ROOT 

Mr.  President,  Ladies  and  Gentlemen:  We  all  of  us  agree, 
and  a  very  large  part  of  the  world  agrees,  that  there  ought  to  be 
an  end  to  war,  that  it  is  brutal,  wasteful  and  stupid.  We  have 
been  talking  about  it  for  a  great  many  years.  The  volume  of 
sound  has  swelled  and  grown  into  a  great  chorus  of  universal 
acclaim  for  the  principles  of  peace  with  justice. 

But  all  great  movements  have  a  definite  development.  They 
pass  from  stage  to  stage.  The  declaration  of  principles  in  the 
beginning  is  but  the  first  step,  and  the  method  of  development 
is  from  the  general  to  the  particular,  from  the  theoretical  to  the 
practical,  from  the  proposal  to  the  accomplishment. 

Now,  the  movement  for  peace,  for  the  settlement  of  the  dis- 
putes of  mankind  by  peaceful  means,  is,  it  seems  to  me,  passing 
from  one  stage  to  another  in  these  wonderful  years  in  which  we 
live.  Having  accumulated  enough  momentum,  by  means  of 
the  missionary  work  that  has  been  done,  by  means  of  the  propa- 
ganda which  has  been  prosecuted,  we  are  beginning  now  to  pass 
into  the  stage  of  careful,  thoughtful,  definite,  certain  inquiry  into 
the  specific  causes  of  war  and  the  specific  remedies  to  be  applied. 
So  only  can  progress  be  made  towards  a  practical  conclusion. 

The  organization  of  this  Society  is  one  of  the  great  steps  for- 
ward in  this  second  stage  of  development  of  the  world-wide 
peace  movement. 


IO  JUDICIAL  SETTLEMENT 

The  causes  of  war  may  be  roughly,  and  of  course  superficially 
and  generally,  distributed  into  three  categories.  First,  there  are 
the  real  differences  between  nations  as  to  their  respective  rights. 
One  nation  claims  territory  and  another  claims  the  same  terri- 
tory. One  nation  claims  the  right  to  trade  in  a  particular  way, 
at  a  particular  place,  and  another  nation  claims  an  exclusive 
right.  There  are  a  myriad  ways  in  which  nations  may  come  into 
dispute  regarding  real  rights,  each  nation  believing  that  its  side 
of  the  controversy  is  based  upon  justice. 

A  second  category  is  what  I  might  call  that  of  policy.  The 
policy  of  a  country  may  be  to  push  its  trade,  to  acquire  territory, 
to  obtain  a  dominant  influence,  to  insist  upon  a  certain  course 
of  action  by  other  countries  for  its  own  protection  asserting  that 
a  different  course  of  conduct  would  be  dangerous  to  its  safety. 
All  those  questions  of  policy,  however,  are  to  a  considerable  de- 
gree, and  very  frequently,  dependent  upon  the  determination  of 
certain  facts,  and  the  decision  of  certain  questions  of  interna- 
tional law. 

A  third  category  of  causes  of  war  may  be  described  as  being 
matters  of  feeling.  Deep  and  bitter  feeling  is  often  awakened 
between  peoples  of  different  countries.  We  have  got  away  from 
the  time  when  the  pique  or  whim  of  an  individual  monarch  may 
plunge  his  subjects  into  a  bloody  and  devastating  war,  but  we 
remain  in  the  time  when  great  masses  of  people  in  different 
countries  may  become  indignant  over  some  slight  or  insult,  or  a 
course  of  conduct  which  they  deem  to  be  injurious  and  unfair. 
These  matters  of  feeling,  which  are  the  most  dangerous  of  all 
causes  of  war,  because  they  make  the  peoples  of  two  different 
countries  want  to  fight;  these  matters  of  feeling  ordinarily  de- 
pend in  the  beginning  upon  different  views  regarding  the  specific 
rights  of  the  two  countries. 

Now,  as  to  the  first  kind  of  causes  of  war,  the  real  controversies 
about  rights,  it  is  plain  that  they  ought  to  be  de.cided,  and  that 
all  war  based  upon  them  may  easily  be  obviated  by  having  them 
decided,  in  accordance  with  the  rules  of  right  reason. 


ROOT  II 

As  to  the  two  other  classes  of  reasons  for  war,  it  is  plain  that 
the  little  beginnings  out  of  which  they  arise,  the  excuses  upon 
which  they  depend,  may  also  be  disposed  of  if  taken  in  time,  and 
disposed  of  by  reason  and  kindly  consideration.  So  that  while 
it  does  not  cover  the  whole  ground,  while  it  does  not  by  any  means 
solve  the  whole  question,  yet  at  the  bottom  of  all  the  attempts 
practically  to  dispose  of  the  causes  of  war  lies  the  peaceable  de- 
cision of  questions  of  fact  and  law  hi  accordance  with  the  rules 
of  justice. 

Now  we  have  been  for  a  good  many  years  more  and  more 
seeking  to  accomplish  that  by  means  of  arbitration,  and  the 
machinery  for  arbitration  has  been  carefully  devised  and  agreed 
upon  by  the  nations  of  the  earth  at  the  two  successive  Hague 
Conferences,  so  that  it  is  comparatively  easy  for  nations  to  have 
recourse  to  that  method  of  settling  their  disputes. 

But  there  are  some  difficulties  about  arbitration — practical 
difficulties  in  the  way  of  settling  questions.  I  have  said  many 
times  and  in  many  places  that  I  do  not  think  the  difficulty  that 
stands  in  the  way  of  arbitration  to-day  is  an  unwillingness  on  the 
part  of  the  civilized  nations  of  the  earth  to  submit  their  dis- 
putes to  impartial  decision.  I  think  the  difficulty  is  a  doubt 
on  the  part  of  civilized  nations  as  to  getting  an  impartial  de- 
cision. And  that  doubt  arises  from  some  characteristics  of  arbi- 
tral tribunals,  which  are  very  difficult  to  avoid. 

In  the  first  place,  these  tribunals  are  ordinarily  made  up  by 
selecting  publicists,  men  of  public  affairs,  great  civil  servants, 
members  of  the  foreign  offices,  men  trained  to  diplomacy;  and  the 
inevitable  tendency  is,  and  the  result  often  has  been,  in  the 
majority  of  cases  has  been,  that  the  arbitral  tribunal  simply 
substitutes  itself  for  the  negotiators  of  the  two  parties,  and  nego- 
tiates a  settlement.  Well,  that  is  quite  a  different  thing  from 
submitting  your  views  of  right  and  wrong,  your  views  of  the 
facts  and  the  law  on  which  you  base  your  claims  to  right,  to  the 
decision  of  a  tribunal,  of  a  court.  It  is  merely  handing  over  your 


12  JUDICIAL  SETTLEMENT 

interests  to  somebody  to  negotiate  for  you;  and  there  is  a  very 
widespread  reluctance  to  do  that  in  regard  to  many  cases;  and 
the  nearer  the  question  at  issue  approaches  the  verge  of  the  field 
of  policy,  the  stronger  the  objection  to  doing  that. 

Another  difficulty  is  that  the  arbitral  tribunals,  of  course  being 
made  up  largely  of  members  from  other  countries,  the  real  decision 
ordinarily  being  made  up  by  arbiters  who  come  from  other 
countries,  and  not  from  the  countries  concerned,  questions  have 
to  be  presented  to  men  trained  under  different  systems  of  law, 
with  different  ways  of  thinking,  and  of  looking  at  matters.  There 
is  a  very  wide  difference  between  the  way  in  which  a  civil  lawyer 
and  a  common-law  lawyer  will  approach  a  subject,  and  it  is  some- 
times pretty  hard  for  them  to  understand  each  other,  even  though 
they  speak  the  same  language,  while  if  they  speak  different  lan- 
guages it  is  still  more  difficult. 

Another  difficulty  is  that  a  large  part  of  the  rules  of  interna- 
tional law  are  still  quite  vague  and  undetermined,  and  upon  many 
of  them,  and  especially  upon  those  out  of  which  controversy  is 
most  likely  to  arise,  different  countries  take  different  views  as 
to  what  the  law  is  and  ought  to  be.  And  no  one  can  tell  how 
one  of  these  extemporized  tribunals,  picked  at  haphazard,  or 
upon  the  best  information  the  negotiators  of  two  countries  can 
get — no  one  can  tell  what  views  they  are  going  to  take  about 
questions  of  international  law,  or  how  they  are  going  to  approach 
subjects  and  deal  with  them. 

Now  it  has  seemed  to  me  very  clear  that  in  view  of  these  prac- 
tical difficulties  standing  in  the  way  of  our  present  system  of  ar- 
bitration, the  next  step  by  which  the  system  of  peaceable  settle- 
ment of  international  disputes  can  be  advanced,  the  pathway 
along  which  it  can  be  pressed  forward  to  universal  acceptance 
and  use,  is  to  substitute  for  the  kind  of  arbitration  we  have  now, 
in  which  the  arbitrators  proceed  according  to  their  ideas  of  dip- 
lomatic obligation,  real  courts  where  judges,  acting  under  the 
sanctity  of  the  judicial  oath,  pass  upon  the  rights  of  countries, 


ROOT  13 

as  judges  pass  upon  the  rights  of  individuals,  in  accordance  with 
the  facts  as  found  and  the  law  as  established.  With  such  tri- 
bunals, which  are  continuous,  and  composed  of  judges  who  make 
it  their  life  business,  you  will  soon  develop  a  bench  composed  of 
men  who  have  become  familiar  with' the  ways  hi  which  the  people 
of  every  country  do  their  business  and  do  their  thinking,  and  you 
will  have  a  gradual  growth  of  definite  rules,  of  fixed  interpreta- 
tion, and  of  established  precedents,  according  to  which  you  may 
know  your  case  will  be  decided.  It  is  with  that  view  that  I  have 
felt  grateful  to  the  gentlemen  who  have  been  giving  their  tune 
and  efforts  to  the  organization  and  establishment  of  this  Society. 
I  am  sure  that  it  is  a  step  along  the  scientific  and  practical  method 
of  putting  into  operation  all  the  principles  that  we  have  been 
preaching  and  listening  to  for  so  many  years.  It  is  practical, 
and  I  believe  it  will  be  effective. 

There  is  a  great  deal  of  work  for  the  Society  to  do.  Our  people 
here  in  the  United  States  are  probably  more  ready  to  assent  to 
such  a  view  as  this  than  the  people  of  any  other  country  in  the 
world,  because  we  have  been  long  accustomed  to  the  existence 
of  a  great  tribunal,  a  part  of  whose  duty  it  is  to  sit  in  judgment 
upon  the  question  whether  the  governments  of  the  sovereign 
States,  and  the  government  of  our  own  nation,  in  their  acts,  con- 
form to  the  great  principles  of  justice  and  right  conduct  embodied 
in  our  Constitution.  That  arrangement,  of  embodying  the  eternal 
principles  of  justice  in  a  written  instrument,  investing  a  court 
with  the  power  to  declare  all  acts  of  congresses,  and  legislatures, 
and  presidents  and  governors,  void  and  of  no  effect  when  they 
fail  to  conform  to  those  principles,  is,  it  seems  to  me,  the  greatest 
contribution  of  America  to  the  political  science  of  the  world. 
We  are  accustomed  to  seeing  the  actions  of  the  men  who  hold 
the  power,  the  actions  of  the  legislative  bodies  that  hold  the 
purse  strings,  submitted  to  the  adjudication  of  the  court  which 
has  no  power  to  enforce  its  decrees,  except  the  confidence  of  the 
whole  people  behind  it.  We  are  accustomed  to  that,  and  it 


14  JUDICIAL   SETTLEMENT 

seems  natural  to  us  that  nations,  however  great,  and  rulers,  how- 
ever powerful,  should  go  before  a  court  and  submit  the  question 
whether  their  actions  and  their  views  accord  with  the  principles 
of  justice.  But  it  does  not  seem  so  to  most  of  the  world.  It  is 
rather  a  new  idea,  and  it  will  take  time  and  argument  and  exposi- 
tion to  bring  the  world  in  general  to  the  acceptance  of  that  view. 
And  upon  that  long  pathway  this  Society  has  entered.  A  pros- 
perous voyage  to  it,  and  a  safe  arrival. 

I  have  said  that  the  time  has  come  for  practical  dealing  with 
specific  causes  and  specific  remedies.  Do  not  understand  me  as 
believing  that  this  is  to  be  substituted  for  the  continuous  and 
unwearied  assertion  and  reassertion  of  the  great  principles  upon 
which  the  movement  for  peace  and  justice  must  depend  in  all 
parts  and  in  every  phase.  For,  however  great  may  be  the  material 
wealth  and  power  of  these  great  nations,  after  all, — what  rules 
the  world, — the  only  thing  that  is  eternal  and  all-powerful  is  the 
intangible  and  the  sentimental. 

THE  PRESIDING  OFFICER  (SCOTT):  You  have  heard  with 
pleasure  the  Mexican  Ambassador,  representing  our  southern 
neighbor.  I  am  sure  you  will  hear  with  equal  pleasure  and  profit 
His  Honor  Mr.  Justice  Renwick  Riddell,  of  the  King's  Bench 
Division,  High  Court  of  Justice,  Ontario,  Canada,  come  from  his 
home  to  Washington  to  attend  this  conference.  He  will  speak  upon 
the  international  relations  between  the  United  States  and  Canada. 

THE  INTERNATIONAL  RELATIONS  BETWEEN  THE 
UNITED  STATES  AND  CANADA— AN  HISTORICAL 
SKETCH 

WILLIAM  RENWICK  RIDDELL 

Mr.  Chairman,  Ladies  and  Gentlemen:  The  position  of 
Canadians  is  in  some  respects  a  little  singular.  Associated  as 
we  are,  united  with  the  mother  country,  the  British  Empire  by 


RIDDELL  15 

ties  of  loyal  sentiment, — a  silver  cord  which,  please  God,  will 
never  be  broken, — politically  we  belong  to  the  British  Empire. 
Socially,  commercially,  financially,  we  in  large  measure  belong 
to  the  continent  of  which  we  form  a  part.  ...  A  Canadian 
necessarily,  by  reason  of  his  position,  is  inclined  to  look  with  a 
great  deal  of  interest,  and  sometimes  with  no  little  anxiety,  upon 
his  international  relations  with  the  larger,  more  populous  and 
wealthy  and  stronger  nation  on  the  south.  A  nation  of  eight  mil- 
lions by  the  side  of  a  nation  of  one  hundred  millions,  must  needs 
look  with  anxiety  upon  anything  which  might  induce  armed  con- 
flict; and  be  pleased  and  gratified  at  any  movement  or  arrange- 
ment which  may  remove  from  probability,  of  possibility  indeed, 
anything  in  the  nature  of  physical  force. 

The  Reciprocity  Treaty  of  1854  was  terminated  in  1866  by 
the  United  States  with  almost  the  avowed  object  of  forcing 
Canada  to  renounce  her  allegiance  to  the  British  Crown  upon 
penalty  of  being  ruined  commercially  and  financially.  But 
much  water  has  flowed  under  the  bridge  since  then  and  the 
status  quo  as  to  nationality  is  accepted  by  all  as  satisfactory. 
We  are  no  longer  suspicious  of  the  United  States.  The  people 
of  the  United  States  are  now  content  to  let  us  work  out  our  own 
destiny,  standing  by  our  side,  holding  up  with  us  an  example 
of  freedom,  liberty  and  right;  and  they  are  willing  that  there 
shall  be  two  great  English-speaking  nations  upon  this  continent, 
and  not,  as  was  expected  at  one  time,  only  the  one.  This  I  say 
because  history  so  speaks  .  .  .  During  the  latter  part 
of  the  eighteenth  century  and  earlier,  Canada  Was  a  matter 
always  of  anxiety,  a  source  of  anticipated  peril,  to  the  English 
colonies;  and  when  the  time  came  in  1759  to  wrest  that  land  from 
the  French,  the  colonies  gladly  contributed  their  quota  of  men. 
Massachusetts  furnished  seven  thousand  men,  nearly  one-sixth 
of  all  her  men  capable  of  bearing  arms.  Connecticut  turned  out 
five  thousand  men.  New  Jersey,  then  as  now,  ambitious  and 
active,  although  she  had  lost  one  thousand  of  her  sons  very  shortly 


1 6  JUDICIAL  SETTLEMENT 

before,  contributed  another  thousand;  and  the  two  battalions  of 
Royal  Americans  were  not  the  least  effective  of  the  warriors  in 
Wolfe's  army.  They  succeeded.  Quebec  fell,  and  what  Ver- 
gennes,  the  French  ambassador,  had  prophesied  and  what,  indeed, 
had  been  foreseen  by  some  few  thoughtful  Englishmen  and  more 
Frenchmen,  took  place.  The  pressure  of  French  Canada  on  the 
English  colonies  was  removed;  the  latter  had  opportunity  and 
leisure  to  consider  their  relations  with  the  mother  country;  and 
the  result  is  history. 

I  have  no  time  and  no  desire  to  enter  into  the  long  tale  of  that 
fratricidal  strife  between  the  insular  British  and  their  brethren 
on  this  continent,  that  long  story  of  mismanagement,  blundering, 
misunderstanding  and  folly;  although  that  story  is  also  full  of 
deeds  of  self-sacrifice  and  noble  valor.  But  Canada  was  not 
forgotten.  It  was  understood  and  believed  on  all  hands,  as  any 
one  can  read  in  the  history  of  the  Continental  Congress,  that 
the  union  of  the  English-speaking  colonies  would  not  be  complete 
without  Canada  being  taken  in  also.  It  was  moreover  recognized 
that  Canada,  remaining  out  of  the  Federation,  would  form  the 
base  of  attack;  and  Britain  would  pour  fresh  troops  in  from  that 
quarter.  The  freedom  and  repose  of  the  colonies  could,  it  was 
thought,  never  be  secure  with  Canada  in  hostile  hands  on  their 
border.  The  fact  was  heralded  that  Sir  Guy  Carleton,  Governor 
of  Canada,  had  not  been  wholly  successful  in  reconciling  the 
French  "habitant"  to  British  rule.  The  feudal  aristocracy  had 
gone,  the  fungoid  growth  of  noblesse  had  been  removed  in  1763, 
but  the  "habitant"  had  been  left  behind  under  the  British  flag. 
Sir  Guy  Carleton  had  done  his  best  and  had,  at  least  in  part, 
as  was  supposed,  failed.  General  Schuyler  was  sent  north 
that  he  should  occupy  Canada  and  induce  her  to  become  a  part 
of  the  American  Union.  General  Schuyler  fell  sick,  and  the  ill- 
fated  Montgomery  succeeded  him.  He  led  his  forces  without 
much  opposition  to  the  frowning  cliffs  of  old  Quebec,  where  he 
fell.  .  .  .  Not  satisfied  to  rely  upon  military  persuasion 


RIDDELL  17 

alone,  your  people  tried  the  printing  press  also.  Benjamin 
Franklin,  Charles  Carroll  of  Carrollton  and  Samuel  Chase  were 
sent  to  Montreal,  then  in  the  hands  of  General  Wooster  and  the 
American  forces;  and  they  took  with  them  a  French  printer 
named  Mesplets,  picked  up  in  Philadelphia.  The  printing  press 
proved  as  futile  as  the  musket.  .  .  .  Well,  I  am  not  going 
into  the  story  of  the  repulse  at  Quebec,  of  the  battles  which  took 
place,  of  the  suffering  of  the  American  forces  and  of  the  bravery 
upon  both  sides.  That  war,  which  never  should  have  begun, 
came  to  an  end.  The  war  between  the  two  parties,  the  English 
people  on  this  side  the  Atlantic  and  upon  the  other,  came  to  an 
end;  and  then  the  race  showed  their  common  sense.  If  there  is 
anything  upon  which  an  English-speaking  individual  prides  him- 
self, it  is  common  sense.  The  common  sense  of  the  people  and 
their  desire  to  be  governed  by  law,  showed  itself  in  Jay's  treaty 
of  1794,  the  first  treaty  after  the  initial  treaty  of  1783.  By 
it,  practically  all  matters  in  dispute  between  the  nations  were 
to  be  left  to  arbitration.  Since  that  time  until  the  treaty  of 
1909,  which  was  (except  in  form)  made  between  the  United 
States  and  Canada,  nearly  all  matters  in  dispute  between  the 
two  peoples  have  been  disposed  of  by  arbitration,  or  by  being 
left  to  some  person  to  deal  as  a  judge  with  the  questions  in  dis- 
pute. 

In  the  Definitive  Treaty  of  Peace,  concluded  September  3, 
1783,  it  was  provided  that  the  middle  of  the  River  St.  Croix 
should  at  a  certain  place  be  the  boundary  line  between  the  terri- 
tories. Moreover,  the  starting  point  was  to  be  determined  by 
the  source  of  the  St.  Croix.  Doubts  arose  as  to  the  river  meant 
and  in  the  Treaty  of  Amity,  Commerce  and  Navigation,  con- 
cluded November  9,  1784  (Jay's  treaty,  the  starting  point  of 
international  arbitration),  it  was  by  Article  V  provided  that  the 
determination  of  the  question  as  to  what  river  was  meant  in 
the  Treaty  of  Peace  by  the  "River  St.  Croix"  should  be  decided 
by  three  commissioners,  one  appointed  by  each  country,  these 


1 8  JUDICIAL   SETTLEMENT 

two  to  appoint  the  third.  The  commissioners  were  to  give  the 
latitude  and  longitude  of  the  source,  and  to  describe  the  river. 
By  a  subsequent  treaty  of  March  15,  1798,  these  commissioners 
were  relieved  from  particularizing  the  latitude  and  longitude  of 
the  source;  but  they  were  still  to  describe  the  river,  and  as  soon 
as  they  determined  the  source,  a  monument  was  to  be  erected 
to  prevent  any  uncertainty.  The  treaty  of  1794  also  provided 
by  Article  IV  for  a  joint  survey  for  the  purpose  of  ascertaining 
whether  the  Mississippi  extends  so  far  northward  as  to  be  inter- 
sected by  a  line  to  be  drawn  due  west  from  the  Lake  of  the  Woods, 
the  contracting  parties  agreeing  that,  if  not,  they  would  regulate 
the  boundary  at  that  point  by  amicable  negotiation. 

And  Article  VI  provided  for  a  board  of  commissioners,  five  in 
number,  two  appointed  by  each  party,  and  the  fifth  by  the  unani- 
mous voice  of  these  four.  These  commissioners  were  to  decide 
the  amount  of  losses  and  damages  actually  suffered  by  British 
subjects  by  lawful  impediments  since  the  Peace,  whereby  the 
British  subjects  being  creditors  of  citizens  or  inhabitants  of  the 
United  States,  could  not  by  ordinary  course  of  justice  obtain  full 
and  adequate  compensation.  The  commissioners  were  given 
power  to  examine  on  oath  or  affirmation;  in  short,  the  general 
powers  of  a  court;  and  the  award  of  any  three  was  made  final — 
the  United  States  agreeing  to  pay  the  amount  which  might  be 
awarded. 

Difficulties  arose  in  the  execution  of  this  article,  and  on  January 
2, 1802,  a  new  treaty  was  concluded,  by  which  His  Majesty  agreed 
to  accept  £600,000  sterling,  payable  by  three  annual  instalments 
of  £200,000  each,  in  full  of  these  claims. 

So,  too,  citizens  of  the  United  States  had  complained  of  irregu- 
lar capture  and  condemnations  of  their  ships.  A  board  of  five 
commissioners,  appointed  in  "exactly  the  manner  directed  with 
respect  to  those  mentioned  in  the  preceding  article,"  was  provided 
for  by  Article  VII — the  award  of  any  three  was  made  final — and 
Britain  agreed  to  pay  the  amount  determined.  Commissioners 


RIDDELL  19 

were  duly  appointed,  and  they  are  referred  to  in  the  treaty  of 
January  8,  1802,  hi  Article  III. 

It  is,  I  think,  perfectly  plain  that  already  both  countries  fully 
recognized  the  value  of  the  judicial  determination  of  international 
disputes  even  then, 

But  the  fighting  blood  still  coursed  the  veins  of  both  peoples — 
the  argumentum  ad  bacidinum  was  appealed  to  again.  A  still 
more  inexcusable  war  even  than  that  of  forty  years  before — if 
such  a  thing  is  possible — broke  out.  Canada  was  again  invaded, 
this  time  hi  the  west  as  well  as  in  the  east.  Upper  Canada  was 
in  great  part  populated  by  the  United  Empire  Loyalists  and  their 
descendants.  The  United  Empire  Loyalists  had  left  their  native 
land  rather  than  change  their  flag  and  their  allegiance,  and  in 
many  instances  had  lost  all  they  had.  Although  by  Article  V 
of  the  treaty  of  peace  it  had  been  agreed  that  Congress  should 
earnestly  recommend  it  to  the  legislatures  of  the  respective  States 
to  provide  for  the  restitution  of  all  confiscated  estates  belonging 
to  British  subjects,  and  should  also  earnestly  recommend  to  the 
legislatures  a  reconsideration  of  all  statutes  in  the  premises,  so  as 
to  make  them  consistent  not  only  with  justice  and  equity,  but 
also  with  the  spirit  of  conciliation  which  should  hi  the  return  of 
the  blessings  of  peace  universally  prevail,  few  of  the  despoiled 
Loyalists  received  much  benefit  from  the  recommendation — on 
one  pretext  or  another  they  were  left  without  compensation  for 
their  confiscated  property.  The  mother  country  came  to  the 
rescue  and  paid  some  of  them  a  part  of  what  they  should  have 
received  from  their  former  neighbors. 

It  was  no  wonder  then  that  the  bitterest  feeling  existed  against 
the  nation  to  the  south  on  the  part  of  these  martyrs  for  principle 
and  their  descendants.  Not  only  did  they  consider  the  invaders 
disloyal  and  rebels  against  their  legitimate  sovereign,  but  also 
guilty  of  the  meanest  kind  of  fraud — embezzling  by  process  of 
law. 

But  at  length,  this  armed  conflict  came  to  an  end,  and  again 


20  JUDICIAL  SETTLEMENT 

there  was  peace.  On  December  24,  1814,  at  the  end  of  the  war, 
a  new  treaty,  the  Treaty  of  Ghent,  was  entered  into;  and  common 
sense  again  prevailed. 

In  the  treaty  of  peace  of  1783  the  boundary  between  the  two 
countries  had  been  fixed  in  such  a  way  that  it  was  doubtful 
whether  the  Grand  Manan  and  the  islands  in  the  Bay  of  Passa- 
maquoddy  belonged  to  the  one  country  or  the  other.  Accord- 
ingly in  the  Treaty  of  Ghent,  Article  IV  made  provision  for 
reference  to  two  commissioners  to  examine  and  decide  upon  the 
several  claims,  one  to  be  appointed  by  the  King  and  the  other  by 
the  President.  If  these  should  not  agree,  it  was  provided  that 
it  should  be  referred  to  some  friendly  sovereign  or  state,  each 
contracting  party  agreeing  to  consider  the  decision  of  such  friendly 
sovereign  or  state  final  and  conclusive. 

The  two  commissioners  appointed  under  this  treaty,  in  1817, 
November  24,  gave  a  decision  awarding  three  islands  in  the  Bay 
of  Passamaquoddy  to  the  United  States  and  the  rest  to  the 
islands  in  that  bay  as  well  as  the  Grand  Manan  to  Britain,  i.e., 
Nova  Scotia. 

It  was  stated  in  this  award  that,  "It  became  necessary  that  each 
commissioner  should  yield  a  part  of  his  individual  opinion." 

Precisely  similar  provisions  were  made  by  Article  V  of  the 
Treaty  of  Ghent  for  the  determination  of  boundaries  at  other 
points  (the  north  of  Maine)  as  were  made  in  Article  IV  for  the 
islands,  and  by  Article  VI  for  the  boundary  at  the  Iroquois 
River  and  Lakes  Ontario,  Erie  and  Huron,  and  the  determina- 
tion of  the  ownership  of  the  islands. 

The  commissioners  under  Article  V  of  the  Treaty  of  Ghent 
were  to  cause  the  boundary  from  the  source  of  the  River  St. 
Croix  to  the  River  Iroquois  or  Cataraquai  to  be  surveyed  and 
they  were  to  make  a  map  of  the  boundary  determined  by  them. 
The  commissioners  appointed  had  elaborate,  voluminous  and 
complicated  reports  made,  with  surveys,  etc.,  but  failed  to  agree. 
Accordingly,  September  29,  1837,  a  convention  was  entered  into 


RIDDELL  21 

to  refer  the  matter  to  some  friendly  sovereign  or  state;  but  the 
award,  rendered  by  the  arbitrator,  the  King  of  the  Netherlands 
(1831),  was  satisfactory  to  neither  party  and  was  set  aside  by 
mutual  waiver.  The  dispute  was  finally  settled  by  the  Ash- 
burton-Webster  Treaty  (1842). 

The  commissioners  under  Article  VI  of  the  Treaty  of  Ghent, 
Messrs.  Porter  and  Barclay,  gave  a  decision  at  Utica,  N.  Y., 
June  1 8,  1822,  which  was  accompanied  by  a  series  of  maps;  and 
the  line  so  decided  by  them  has  been  ever  since  respected. 

During  the  War  of  1812  much  damage  had  been  done  by  armed 
vessels  upon  the  Great  Lakes.  The  Treaty  of  Ghent  did  not 
provide  that  such  armed  forces  should  not  be  kept  up;  but  it 
became  apparent  to  both  sides  that  it  would  be  well  strictly  to 
limit  the  number  and  quality  of  armed  vessels  upon  the  fresh 
waters  between  the  two  countries.  After  some  negotiation  notes 
were  interchanged  April  28  and  29,  1817,  containing  the"Rush- 
Bagot  convention,"  which  notes  contained  an  agreement  by  one 
and  the  other  party  limiting  the  naval  force  to  be  kept  on  the 
lakes  to  a  very  few:  on  Lake  Ontario  one  vessel,  on  the  upper 
lakes  two  vessels,  on  Lake  Champlain  one  vessel,  none  of  the 
vessels  to  exceed  one  hundred  tons  burthen,  and  each  to  have  but 
one  cannon  of  18  pounds.  It  was  agreed  to  dismantle  forthwith 
all  other  armed  vessels  on  the  lakes,  and  that  no  other  vessels 
of  war  should  be  there  built  or  armed;  six  months'  notice  to  be 
given  by  either  party  of  desire  of  annulling  the  stipulation. 

The  arrangement  was  after  some  delay  submitted  by  the  Presi- 
dent to  the  Senate,  and  that  body  in  1818  approved  of  and  con- 
sented to  it. 

Differences  had  arisen  in  the  meantime  as  to  the  true  meaning 
of  Article  I  of  the  Treaty  of  Ghent,  which  had  provided  for  the 
immediate  restoration  of  all  possessions  taken  by  either  party  from 
the  other  during  the  war.  The  United  States  claimed  the  resti- 
tution of  or  full  compensation  for  the  slaves  in  any  territory 
which  was  to  be  restored  to  the  United  States  under  the  treaty, 


22  JUDICIAL  SETTLEMENT 

but  was  still  occupied  by  the  British  forces,  whether  the  slaves 
were  on  shore  or  on  board  any  British  vessel  in  the  territory 
of  the  United  States.  Britain  had  disputed  this  claim. 

By  a  convention  concluded  at  London,  October  20,  1818,  it 
was  by  Article  V  provided  that  the  determination  of  this  dif- 
ference should  be  referred  to  some  friendly  sovereign  or  state  to 
be  named  for  that  purpose,  and  each  of  the  contracting  parties 
engaged  to  accept  such  decision  as  final  and  conclusive. 

The  Emperor  of  Russia  was  named.  He  gave  his  decision  that 
the  United  States  were  entitled  to  compensation  for  all  slaves 
carried  away  by  the  British  forces  on  leaving  the  territories  which 
were  to  be  restored,  and  all  slaves  transferred  to  British  vessels 
within  these  territories  (provided  such  slaves  were  from  the  terri- 
tories), but  not  for  slaves  carried  away  from  territories  not  to  be 
restored  to  the  United  States. 

Rights  given  by  Article  I  of  the  treaty  of  1818  to  the  inhabit- 
ants of  the  United  States  to  fish  became  the  subject  of  much 
controversy,  very  unpleasant  and  even  dangerous  in  its  character. 
The  troubles  were  at  length  put  an  end  to  in  1910  by  an  arbitra- 
tion by  the  Hague  Permanent  Court.  This  will  be  spoken  of 
later. 

To  carry  out  and  make  effective  the  decision  of  the  Emperor 
of  Russia,  a  convention  was  concluded  July  22,  1822,  under  the 
mediation  of  the  Emperor  of  Russia,  whereby  (Article  I)  one  com- 
missioner and  one  arbitrator  were  to  be  appointed  by  the  Pres- 
ident, and  one  commissioner  and  one  arbitrator  by  the  King,  who 
were  to  constitute  a  board  to  determine  (if  the  governments 
had  not  in  the  meantime  agreed)  the  true  value  of  slaves  at  the 
time  of  the  exchange  of  the  ratification  of  the  Treaty  of  Ghent 
and  so  fix  an  average  value;  if  the  majority  should  not  agree, 
the  Russian  minister  or  agent  at  Washington  was  to  determine 
the  average  value. 

Article  II  provided  that,  the  average  value  being  found,  the 
two  commissioners  were  to  form  a  board  to  determine  the  number 


RIDDELL  23 

of  slaves  to  be  paid  for,  and  they  were  given  powers  of  examining 
under  oath,  etc.  If  they  did  not  agree  on  any  point,  the  name  of 
one  of  the  arbitrators  was  to  be  drawn  by  lot,  and  that  arbitrator 
became  the  third  member  of  the  board,  the  decision  of  the  major- 
ity to  be  final. 

Difficulties  arose  in  the  execution  of  this  convention,  and  ulti- 
mately, November  13,  1826,  the  two  countries  agreed  that  $i,- 
204,960  should  be  paid  and  accepted  in  full,  and  the  commission 
was  dissolved. 

Claims  continued  to  be  made  by  the  citizens  of  each  country 
against  the  other  and  another  convention  became  necessary. 
This  was  concluded  February  8,  1853,  and  provided  (Article  I) 
for  the  reference  to  two  commissioners,  one  to  be  named  by  the 
Queen  and  the  other  by  the  President,  of  all  claims  presented 
against  either  government  by  citizens  of  the  other  country. 
The  commissioners  were  to  name  a  third  person  to  'act  as  arbi- 
trator or  umpire  in  any  case  in  which  they  should  differ  in  opin- 
ion. If  they  could  not  agree  upon  the  umpire,  each  was  to  name 
one  and  the  choice  between  the  two  so  named  was  to  be  made  by 
lot.  The  time  for  making  the  award  was  July  17,  1854,  extended 
to  January  15,  1855. 

The  commissioners  selected  as  umpire  Mr.  Joshua  Bates,  who 
resided  in  England,  but  was  an  American. 

They  awarded  damages  in  about  thirty  claims;  and  the  whole 
proceedings  of  the  board  were  completely  satisfactory  to  both 
countries. 

June  5,  1854,  a  new  Treaty  was  entered  into — the  Reciprocity 
Treaty — which,  by  Article  I,  provided  for  the  appointment 
by  each  party  of  a  commissioner.  These  were  to  choose  or  select 
by  lot  a  third  person  as  arbitrator  or  umpire,  if  necessary.  The 
commissioners  were  to  examine  the  coasts  of  the  British  provinces 
and  the  United  States,  and  designate  the  places  reserved  exclu- 
sively for  British  fishermen  and  excluded  from  the  common  liberty 
of  fishing  given  by  the  convention  of  October  20,  1818,  and  the 
treaty  we  are  now  considering. 


24  JUDICIAL  SETTLEMENT 

I  pass  over  the  Treaty  for  the  Suppression  of  the  African  Slave 
Trade,  April  7,  1862,  and  the  mixed  court  provided  for  by  that 
treaty  to  pass  upon  claims  for  arbitrary  and  illegal  detention 
of  vessels  by  the  ships  of  either  navy. 

An  additional  convention  was  concluded  June  3,  1870,  where- 
by these  courts  were  abolished  for  any  future  business,  and  their 
jurisdiction  lodged  in  the  courts  of  the  two  countries. 

By  a  treaty  of  July  i,  1863  (Article  I)  commissioners  were 
to  be  appointed,  one  by  each  government,  they  to  select  an  arbi- 
trator or  umpire.  If  they  could  not  agree,  the  King  of  Italy 
was  to  be  appointed.  They  were  to  pass  upon  the  money  com- 
pensation to  be  paid  to  the  Hudson's  Bay  Company  and  the 
Puget's  Sound  Agricultural  Company  in  respect  of  rights  and 
claims  in  Oregon  and  Washington  Territories.  The  commission- 
ers, A.  S.  Johnson  and  John  Rose,  made  their  award  Septem- 
ber 10,  1869,  allowing  $450,000  to  the  Hudson's  Bay  Company 
and  $200,000  to  the  Puget's  Sound  Agricultural  Company. 

Then  came  the  very  important  Treaty  of  Washington,  May  8, 
1871 — important  inter  alia  from  the  fact  that  for  the  first  time 
one  of  the  plentipotentiaries  was  from  Canada,  namely,  the  Prime 
Minister  of  Canada — and  still  more  so  from  the  fact  that  the 
provisions  as  to  the  rights  given  to  citizens  of  the  United  States 
of  coast  fishing  and  through  bonding  were  not  to  come  into  force 
until  legislation  had  been  passed  to  that  intent  by  the  Parliament 
of  Canada  and  the  Legislature  of  Prince  Edward  Island  (then 
still  a  separate  province  and  not  as  yet  a  part  of  the  Dominion 
of  Canada).  There  was  a  long  and  acrimonious  debate  in  the 
Parliament  of  Canada  over  the  proposed  legislation,  but  at  length 
the  act  was  passed,  June  14,  1872,  35  Vic.  (Dom.)  C.  2. 

The  importance  to  be  attached  to  these  facts  is,  I  think,  obvious. 
It  is  true  that  Canada  was  not  recognized  as  a  nation  with  power 
to  make  her  own  treaties,  but  the  mother  land  acknowledged 
her  very  great  interest  in  the  matters  to  be  considered  by  appoint- 
ing her  Prime  Minister  one  of  the  Imperial  Plenipotentiaries. 


RIDDELL  25 

Further  than  that,  the  home  authorities  recognized  that  she  was 
"mistress  in  her  own  house,"  and  that  her  own  Parliament 
should  determine  what  was  best  for  her.  This  was  a  kind  of  offi- 
cial recognition  of  the  real  position  of  Canada,  concealed  as  it 
was  by  official  and  traditional  terminology. 

Article  I  provides  for  the  disposal  of  the  "Alabama  Claims" 
by  "Tribunal  of  five  arbitrators,  one  named  by  each  of  the  two 
governments,  parties  to  the  dispute,  one  by  the  King  of  Italy, 
one  by  the  Emperor  of  Brazil  and  one  by  the  President  of  the 
Swiss  Republic.  They  were  to  meet  in  Geneva.  They  did  so, 
and  their  award  is  too  well  known  to  require  further  statement. 

By  Article  XII  an  agreement  was  made  to  submit  to  three 
commissioners  all  claims  of  citizens  of  the  United  States  other 
than  those  arising  from  the  acts  of  ships  allowed  by  Britain  to 
escape  from  her  ports  and  similar  claims  by  British  subjects 
against  the  United  States.  One  commissioner  was  to  be  appointed 
by  each  contracting  party  and  if  the  parties  could  not  agree 
upon  the  third,  the  Spanish  representative  at  Washington  was 
to  name  him.  This  board  sat  at  Washington.  The  claims  on 
the  part  of  the  United  States  arose  from  the  St.  Alban's  Raid, 
and  other  alleged  wrongs.  The  total  number  of  cases  filed  on 
both  sides  was  nearly  500  and  the  decisions  were  in  most  in- 
stances unanimous. 

Article  XXII  provided  for  three  commissioners  to  determine 
the  amount  of  compensation  to  be  paid  by  the  government  of 
the  United  States  to  the  British  government  for  the  privileges 
given  the  citizens  of  the  United  States  of  sea  coast  fishing.  Each 
party  was  to  appoint  one,  the  two  governments  jointly  the  third 
and  if  they  could  not  agree  on  the  umpire,  the  Austrian  repre- 
sentative at  London  was  to  nominate  him.  This  was  the  well- 
known  Halifax  Arbitration. 

Article  XXXIV  is  another  provision  which  requires  notice. 
The  treaty  of  June  15,  1846,  made  the  international  boundary 
at  the  far  West,  "The  middle  of  the  channel  which  separates 


26  JUDICIAL  SETTLEMENT 

the  Continent  from  Vancouver  Island."  The  commisioners 
appointed  to  determine  the  boundary  differed  as  to  the  position 
of  this  channel.  It  was  agreed  by  Article  XXXIV  to  leave  the 
determination  of  this  controversy  to  the  Emperor  of  Germany. 
The  Emperor  (October  21, 1872)  decided  hi  favor  of  the  American 
contention;  and  we  lost  a  large  island  which  we  had  thought  was 
ours.  In  1873,  March  10,  the  commissioners,  Hamilton  Fish, 
Sir  Edward  Thornton  and  James  C.  Provost,  made  a  final  dispo- 
sition of  the  whole  boundary  under  the  Treaty  of  1842. 

Seal  fishery  gave  rise  to  a  good  deal  of  trouble,  and  after  con- 
siderable negotiation  and  a  modus  vivendi,  a  treaty  was  signed 
at  Washington,  February  29,  1892,  which  provided  for  the  de- 
termination of  the  matters  in  controversy  by  a  tribunal  of  seven 
arbitrators,  two  to  be  named  by  each  of  the  two  powers  to  the 
treaty,  one  each  by  the  King  of  Sweden  and  Norway,  the  King 
of  Italy  and  the  President  of  France.  The  agent  of  Britain  was 
the  Canadian  Minister  of  Marine  and  Fisheries,  and  one  of  the 
counsel  was  a  leader  of  the  Toronto  bar,  while  one  of  the  arbi- 
trators was  the  Canadian  Minister  of  Justice,  afterward  Prime 
Minister  of  Canada.  The  award  was  made  August  15,  1893,  and 
not  long  afterward  the  United  States  paid  $425,000  in  full  of  all 
claims  by  British  subjects.  The  matters  at  issue  involved  the 
exclusive  rights  in  the  seal  fisheries  in  Bering's  Sea,  and  the 
jurisdiction  of  the  United  States  over  its  waters.  The  dispute  was 
full  of  potentialities  for  war  and  at  any  time  an  injudicious  act 
on  the  part  of  officers  distant  from  and  without  communication 
with  their  government  might  have  had  disastrous  results. 

Troubles  had  also  arisen  in  reference  to  the  boundary  line 
between  Canada  and  Seward's  purchase  from  Russia,  Alaska. 
On  July  22,  1892,  a  convention  was  concluded  for  joint  surveys; 
but  still  there  were  difficulties  which  could  not  be  solved  by  sur- 
veyors. After  much  negotiation  a  convention  was  concluded 
January  24,  1903,  whereby  the  determination  of  the  boundary 
line  was  referred  to  a  tribunal  of  six  impartial  jurists  of  repute, 
three  to  be  named  by  each  contracting  party. 


R1DDELL  27 

Three  Americans  of  eminence  were  appointed  by  the  United 
States  and  the  British  government  appointed  the  Lord  Chief 
Justice  of  England  and  two  Canadians,  one  of  whom  had  been 
Chief  Justice  of  Ontario  and  was  a  Justice  of  the  Supreme  Court 
of  Canada,  the  other  a  Chief  Justice  of  Quebec.  Upon  the  death 
of  Mr.  Justice  Armour,  Mr.  A.  B.  Aylesworth,  K.  C,  of  the 
Toronto  bar,  was  appointed  in  his  stead. 

This  tribunal  met  in  London  hi  1903,  and  their  award  is  of 
too  recent  date  to  require  explanation.  It  is  to  be  noticed,  how- 
ever, that  Canadian  counsel  sustained  the  burden  of  the  labor  of 
preparation  and  argument  of  the  case. 

On  January  n,  1897,  there  was  signed  at  Washington  the 
Olney-Pauncefote  Treaty,  providing  for  the  reference  to  three 
arbitators  of  all  claims  or  aggregates  of  claims  not  amounting 
to  £100,000  and  not  involving  territorial  claims.  These  arbitra- 
tors were  to  be  appointed  one  by  each  government  and  the  two 
thus  selected  to  nominate  the  third — all  three  to  be  jurists  of 
repute.  All  claims  or  aggregates  of  claims  exceeding  £100,000 
and  all  other  matters  in  difference  under  treaty  or  otherwise, 
not  including  territorial  claims,  were  agreed  to  be  left  to  the 
board,  and  if  the  board  were  unanimous,  the  award  was  to  be 
final;  if  not,  either  party  could  have  it  reviewed  by  a  tribunal  of 
five  jurists  of  repute,  two  appointed  by  each  government  and 
the  fifth  by  these  four,  or,  if  they  could  not  agree,  then  by  the 
King  of  Sweden  and  Norway  or  some  substitute  selected  by  the 
contracting  parties.  This  treaty  failed  of  ratification  by  the 
Senate. 

In  1908,  April  4,  a  general  Treaty  of  Arbitration  between  the 
United  States  and  Great  Britain  was  signed  at  Washington. 
This  provided  (Article  I)  that  differences  which  might  arise  of 
a  legal  nature  or  relating  to  the  interpretation  of  treaties  exist- 
ing between  the  two  contracting  parties,  and  which  could  not 
be  settled  by  diplomacy,  should  be  referred  to  the  permanent 
Court  of  Arbitration  established  at  The  Hague  by  the  convention 


28  JUDICIAL   SETTLEMENT 

of  July  29,  1899,  provided  they  did  not  affect  the  vital  interests, 
the  independence  or  the  honor  of  the  two  contracting  states  and 
did  not  concern  the  interests  of  third  parties. 

Article  II  provides  that  in  each  individual  case  the  parties 
were  to  conclude  a  special  agreement  denning  the  matter  in  dis- 
pute, the  scope  of  the  powers  of  the  arbitrators  and  the  times  to 
be  set  for  the  several  stages  of  the  procedure. 

A  provision  of  very  great  significance  to  a  Canadian  appears 
in  the  treaty.  The  British  government  reserved  the  right  before 
concluding  a  special  agreement  in  any  matter  affecting  the  inter- 
ests of  a  self-governing  Dominion  of  the  British  Empire  to  obtain 
the  concurrence  therein  of  the  government  of  that  Dominion. 
This  was  not  indeed  the  first  time  the  concurrence  of  the  colony 
had  been  provided  for;  as  we  have  seen  that  in  the  Treaty  of 
Washington  (1871)  certain  parts  of  the  treaty  were  not  to  come 
into  force  until  legislation  had  been  passed  by  the  colonies  con- 
cerned. 

It  was  in  conformity  with  the  provisions  of  this  treaty  that  the 
special  agreement  was  entered  into,  with  the  concurrence  of  the 
governments  of  Canada  and  Newfoundland,  for  submission  to 
The  Hague  Permanent  Court  of  Arbitration  of  questions  relat- 
ing to  fisheries  of  the  North  Atlantic  Coast.  The  questions 
arose  under  the  convention  of  1818  which  gave  (Article  I)  certain 
rights  to  the  inhabitants  of  the  United  States  to  fish  in  British 
waters.  This  special  agreement,  signed  at  Washington,  January 
27,  1909,  confirmed  by  interchange  of  notes  March  4,  1909,  set 
out  the  matters  in  dispute  and  the  contentions  of  either  party. 

The  board  appointed  contained  the  Chief  Justice  of  Canada 
and  a  Justice  of  the  United  States  Circuit  Court  of  Appeals,  as 
well  as  an  Austrian,  a  Dutchman  and  an  Argentine.  Canadian 
counsel  again  took  part  in  the  presentation  of  the  case  for  Great 
Britain  and  assumed  much  of  the  burden  of  its  preparation. 

The  result  seems  to  have  been  satisfactory  to  both  sides. 

Now,  while  I  do  not  say  at  all  that  I  have  made  an  accurate 
division  of  the  various  treaties,  this,  broadly  is  the  result:  Of 


RIDDELL  29 

matters  which  were  peculiarly  pecuniary,  there  were  five  sub- 
mitted. Two  were  wholly  successful  and  three  were  not  success- 
ful. Of  matters  which  were  not  solely  pecuniary,  involving  land 
or  something  of  that  kind,  ten  were  submitted  to  commissioners, 
of  which  eight  were  wholly  successful  and  two  not  successful. 
There  were  four  references  to  sovereigns,  three  of  which  were 
successful.  Therefore,  of  the  nineteen  references,  thirteen  were 
wholly  successful  and  only  six  have  failed,  which  I  venture  to 
say  is  an  admirable  showing. 

January  u,  1909,  a  treaty — "Waterways  Treaty" — was  signed 
providing  for  the  establishment  and  maintenance  of  an  Inter- 
national Joint  Commission  of  the  United  States  and  Canada— 
—three  appointed  by  each  government — which  commission  should 
(Article  VIII)  have  jurisdiction  over  and  pass  upon  all  cases 
involving  the  use,  obstruction  or  diversion  of  the  waters  between 
the  United  States  and  Canada.  But  Article  IX  contains  an 
agreement  that  all  matters  of  difference  between  the  countries 
involving  the  rights,  obligations  or  interests  of  either  in  relation 
to  the  other  or  to  the  inhabitants  of  the  other  along  the  frontier 
shall  be  referred  to  this  commission  for  inquiry  and  report- 
Article  X  provides  that  any  questions  or  matters  of  difference 
involving  the  rights,  obligations  or  interests  of  the  United  States 
or  of  Canada,  either  in  relation  to  each  other  or  to  their  respec- 
tive inhabitants  may  be  referred  for  decision  to  this  International 
Joint  Commission.  If  the  commission  be  equally  divided,  an 
umpire  is  to  be  chosen  in  the  manner  provided  by  Act  45  of  the 
Hague  convention  of  October  18,  1907.  This  may  be  called  a 
miniature  Hague  tribunal  of  our  own,  just  for  us  English-speaking 
nations  of  the  continent  of  North  America. 

Leaving  aside  questions  of  tariff,  which  are  quite  outside  the 
subject  of  this  paper,  the  international  relations  between  the  two 
countries  are  governed  by  the  three  agreements: 

1.  The  Rush-Bagot  arrangement. 

2.  The  General  Arbitration  Treaty  of  1908. 

3.  The  Waterways  Treaty  of  1909. 


30  JUDICIAL   SETTLEMENT 

The  first  of  these  has  been  strictly  observed,  except  where  the 
consent  of  Canada  has  been  obtained  to  trifling  variations  from 
its  terms — a  variation  more  in  the  letter  than  in  the  spirit. 

The  understanding  was,  however,  in  great  danger  in  1864. 
The  Minister  of  the  United  States  in  London  was  instructed  in 
October  of  that  year  to  give  the  six  months'  notice  required  to 
terminate  the  agreement;  and  Mr.  Adams  did  so,  with  the  subse- 
quent approval  of  Congress.  Before  the  lapse  of  the  time  speci- 
fied, however,  matters  on  the  lakes  had  taken  a  different  turn, 
and  the  United  States  expressed  a  desire  that  the  arrangement 
should  continue  and  be  observed  by  both  parties.  This  was 
acceded  to  and  all  parties  thereafter  considered  the  convention 
to  be  in  full  force. 

In  1904  permission  was  given  to  the  United  States  ship  Essex, 
carrying  fourteen  guns,  to  pass  through  the  St.  Lawrence  River 
and  the  Canadian  Canals  to  the  Great  Lakes  from  the  Atlantic. 
This  was  done  on  the  assumption  that  the  United  States  did  not 
intend  to  depart  from  the  convention,  although  I  confess  my 
inability  to  understand  how  this  was  logically  consistent.  But 
we  are  not  a  logical  people. 

The  Fern  was  allowed  to  pass  in  the  same  way  in  1905  through 
the  canals,  and  she  is  still  in  the  lakes.  Her  use  is  agreed  to  be 
confined  to  purposes  of  training. 

In  1907  the  State  of  Michigan  asked  for  the  loan  from  the 
United  States  of  a  ship.  The  Don  Juan  d' Austria  was  loaned; 
her  guns  and  armament  were  removed  at  Portsmouth  for  the 
voyage  up,  and  though  no  pledge  was  given  that  they  would  not 
be  replaced,  the  ship  was,  at  the  request  of  the  United  States, 
allowed  to  pass  up  the  Canadian  Canals. 

In  the  same  year  the  Sandoval,  carrying  a  secondary  battery 
of  two  guns,  was  upon  a  like  request  allowed  to  pass  for  the  use 
of  the  New  York  Naval  Militia.  This  permission  is  expressed 
to  be  "on  the  same  conditions  as  those  governing  the  similar 
cases  of  the  United  States  vessels  Hawk  and  Dorothea,  i.e.,  that 


RIDDELL  31 

the  said  vessel  shall  pass  through  Canadian  waters  without  arma- 
ment and  that  her  use  will  be  confined  to  purposes  of  training. 

In  1908  the  U.S.S.  Nashville  received  the  like  permission  on 
the  like  terms. 

The  Navy  Department  of  the  United  States  claims  that  there 
is  nothing  in  the  way  of  treaty  obligations  to  prevent  the  build- 
ing of  any  kind  of  vessel  on  the  Great  Lakes,  and  there  are  a 
dozen  shipyards  with  plant  and  organization  sufficient  to  build 
hulls  and  machinery  and  to  launch  naval  vessels  of  the  maximum 
size  that  can  be  taken  by  the  canal  system. 

Canada  has  no  such  ships  as  those  which  I  have  mentioned; 
and  it  cannot  be  denied  that  sometimes  there  are  anxious  thoughts 
entertained  arising  from  the  maintenance  on  the  lakes  of  these 
ships,  though  only  for  training  purposes.  The  garrison  at  To- 
ronto is  maintained  chiefly  for  training  purposes  for  our  militia; 
but  it  would  be  just  as  efficient  were  war  to  be  declared  as  though 
it  were  not  used  tor  training  purposes.  But  when  all  is  said  and 
done,  most  Canadians  realize  that  the  United  States  is  a  friendly 
nation;  and,  even  with  the  variations  allowed,  the  arrangement 
has  been  of  enormous  advantage  to  all  concerned,  of  disadvantage 
to  none. 

It  may  be  well  for  the  United  States  to  consider  whether  it  is 
not  unwise  to  ask  that  the  letter  of  the  agreement  should  be  de- 
parted from.  Canada  would  be  considered  ungracious  were 
she  to  refuse  to  consent  to  other  ships  being  allowed  to  pass  up 
the  canals  for  use  on  the  lakes.  It  would  look  as  though  she 
feared  a  hostile  movement  on  the  part  of  her  neighbor;  that 
she  doubted  the  good  faith  and  real  desire  for  permanent  peace  of 
her  elder  sister  to  the  south.  But  both  parties  thought  that  the 
agreement  was  one  that  should  be  made  and  when  made  should 
be  observed;  and  it  is  rather  hard  to  see  how  the  convenience  of 
one  party  should  lead  to  its  being  departed  from.  National 
susceptibilities  are  to  be  considered,  however  absurd  they  may 
be  and  whether  they  are  absurd  or  not. 


32  JUDICIAL  SETTLEMENT 

The  treaty  of  1908,  already  referred  to,  provides  that  differ- 
ences which  may  arise  of  a  legal  nature,  or  relating  to  the  inter- 
pretation of  treaties  existing  between  the  two  contracting  parties, 
and  which  it  may  not  have  been  possible  to  settle  by  diplomacy, 
shall  be  referred  to  the  Permanent  Court  of  Arbitration  established 
at  The  Hague  by  the  convention  of  July  29,  1899,  provided 
nevertheless  that  the  differences  do  not  affect  the  vital  interests, 
the  independence  or  the  honor  of  the  two  contracting  states,  and 
do  not  concern  the  interests  of  third  parties. 

The  treaty  of  1909  was  preceded  by  the  constitution  of  a  board 
of  commissioners.  Such  a  board  was  formed  at  the  request  of  the 
President,  acting  under  the  authority  of  the  River  and  Harbor 
Act  approved  June  13,  1902.  The  functions  of  the  proposed 
board  were  denned  in  the  act  and  were  substantially  a  full  inves- 
tigation of  the  question  of  the  boundary  waters;  and  the  board 
was  to  consist  of  six  members,  three  appointed  by  the  United 
States  and  three  by  Canada.  The  President,  July  15,  1902, 
communicated  through  the  American  Ambassador  at  London 
with  the  British  government,  that  government  transmitted  the 
invitation  to  the  government  at  Ottawa,  the  Canadian  govern- 
ment accepted  the  invitation,  and  this  acceptance  was  communi- 
cated to  the  American  government.  The  American  part  of  the 
board  was  appointed  in  1903  and  the  Canadian  in  1903  and  1905; 
and  work  was  begun  with  all  convenient  speed  on  the  Sault 
Ste.  Marie  Channel,  the  Chicago  Canal,  the  Minnesota  Canal, 
etc.  This  board  has  done  an  immense  amount  of  very  valuable 
work  already. 

The  treaty  of  1909  was  really  at  the  instance  of  that  board. 
It  provides  for  an  international  joint  commission,  three  appointed 
by  the  United  States,  three  by  Canada;  and  the  value  of  the  work 
which  may  be  done  by  this  new  commission  is  incalculable. 

Every  dispute  involving  the  rights,  obligations  or  interests 
of  the  United  States  or  of  the  Dominion  of  Canada  either 
in  relation  to  each  other  or  to  their  respective  inhabitants 


RIDDELL  33 

may  be  referred  to  the  commission  by  the  consent  of  the  two 
countries. 

It  is  hard  to  see  how  a  more  comprehensive  clause  could  be 
framed;  and  if  the  treaty  had  provided  that  such  dispute  "shall" 
be  referred,  the  work  would  be  perfect.  As  it  is,  the  Dominion 
must  give  consent  through  the  Dominion  Cabinet.  That  is  an 
easy  task.  We  have  a  government  which  is  united — it  must  be 
united  or  it  could  not  stand — and  which  in  this  instance  does 
not  need  to  go  to  Parliament  for  authority.  But  in  the  United 
States  the  action  must  be  by  and  with  the  advice  and  consent  of 
the  Senate;  and  sometimes  it  is  said  trouble  arises  hi  the  Senate 
about  confirming  treaties. 

Each  reference  to  the  commission  will  or  may  be  but  equivalent 
to  making  a  new  treaty.  Had  the  provision  been  that  the  con- 
sent should  be  given  by  the  President  of  the  United  States,  the 
position  of  the  consenting  parties  on  the  two  sides  would  have 
been  much  alike. 

Better  even  than  this  would  be  a  provision  making  the  arbi- 
tration of  the  commission  apply  automatically.  If  such  a  pro- 
vision proved  unsatisfactory,  the  treaty  could  be  denounced  and 
a  new  treaty  negotiated.  But  I  suppose  there  may  be  some  jeal- 
ousy on  the  part  of  the  Senate,  or  perhaps  the  Constitution  pre- 
vents. And  we  Canadians  notice  that  your  Constitution  pre- 
vents a  great  many  things  over  which  we  have  no  trouble  at  all. 

Now  arbitration  has  on  the  whole  worked  satisfactorily.  The 
worst  result  by  arbitration  is  enormously  better  than  the  best 
obtained  by  war.  Of  course,  it  is  the  inalienable  right  of  every 
litigant  freeman,  hi  case  he  does  not  succeed,  to  say  things  about 
the  judge.  And  no  cfoubt  the  judge  has  been  damned  most 
energetically  in  many  instances.  That  is  human  nature.  One 
of  your  humorists  has  said,  "There  is  a  great  deal  of  human  na- 
ture in  man. "  That  is  true,  and  neither  American  nor  Canadian 
has  got  rid  of  its  frailties.  "Naturam  expettas  furca  tamen  usque 
recurret." 


34  JUDICIAL   SETTLEMENT 

Indeed  the  very  negotiating  of  his  treaty,  which  is  perhaps  his 
proudest  memorial,  ruined  Jay  politically  and  cost  him  the  Pres- 
idency. Republics  are  proverbially  ungrateful.  The  Republic 
failed  at  the  time  to  appreciate  the  value  of  the  Chief  Justice's 
services:  but  posterity  has  done  him  justice  and  he  is  recognized 
by  all  as  one  of  the  ablest,  noblest  and  most  patriotic  men  of  his 
own  and  all  time. 

We  Canadians  have  always  thought  Lord  Ashburton  gave 
away  a  large  amount  of  territory  to  Maine  which  rightfully 
belonged  to  Canada;  but  this  was  not  the  act  of  an  arbitrator 
or  referee.  When  the  German  Emperor  took  from  us  the  island 
of  Juan  de  Fuca,  we  said  things  about  the  judge,  but  not  much; 
and  all  irritation  on  the  northwest  corner  of  the  United  States 
has  long  passed  away.  The  Alabama  award  did  not  much  con- 
cern us,  and  when  the  Halifax  award  was  made  it  was  the  turn 
of  the  United  States  to  damn  the  judge;  and  no  one  can  say  that 
the  opportunity  was  not  fully  utilized.  But  you  paid  up — with 
a  wry  face  and  after  long  delay,  it  is  true — but  you  paid  up. 

The  Paris  arbitration  was,  I  think,  fairly  satisfactory  to  both 
sides;  and  except  a  few  fire-eaters  on  both  sides  of  the  line,  and 
the  politicians  who  made  use  of  it  in  the  endeavor  to  dish  their 
opponents,  there  was  no  public  objection. 

The  case  was  different  in  the  Alaska  arbitration.  Canadians 
almost  to  a  man  believed  that  Canada  did  not  get  justice.  Even 
before  the  arbitrators  sat,  there  were  statements  made  that  some 
or  one  of  the  American  arbitrators  had  expressed  a  fixed  deter- 
mination not  to  give  way,  no  matter  what  the  evidence.  It  was 
felt  that  the  decision  was  not  a  judicial  decision  on  the  merits, 
but  that  the  result  was  based  upon  diplomatic  grounds.  Our 
people  were  not  so  angry  at  the  decision  itself;  but  they  thought 
fair  play  had  not  been  shown.  All  this  may,  of  course,  be  quite 
without  foundation  or  justification;  and  certainly  little,  if  any, 
reference  is  made  to  the  matter  among  us.  In  any  event,  most 
of  the  anger  was  vented  upon  the  head  of  Lord  Alverstone;  and 
I  presume  he  did  not  feel  it  much. 


RTODELL  35 

But  once  again  I  say,  the  worst  result  (consistent  with  honor) 
by  arbitration  is  enormously  better  than  the  best  by  war. 
.  .  .  Man  is  a  social  animal,  and  so  soon  as,  in  the  course  of 
evolution,  he  became  such,  it  was  imperative  that  his  conduct 
should  be  restrained  by  rule  of  some  kind;  in  short,  by  law. 
Obedience  to  law  must  needs  be  considered  right;  disobedience 
wrong,  a  sin,  for  wrong  and  sin  were  at  first  all  one. 

If  a  man  conceived  his  rights  to  have  been  trenched  upon 
only  two  courses  were  open.  If  the  force  of  public  opinion  (and 
no  civilized  man  can  wholly  appreciate  the  tremendous  power  of 
public  opinion  in  a  primitive  community)  should  not  prove  effec- 
tive to  restore  him  to  his  rights  or  to  bring  about  adequate  com- 
pensation, he  might  be  obliged  to  avenge  his  wrongs,  if  he  could, 
by  his  own  strong  right  hand.  This  is  anarchy. 

The  other  method  is  the  submission  of  the  determination  and 
enforcement  of  rights  to  some  tribunal;  and  that  tribunal,  under 
whatever  name  it  may  be  known,  is  in  substance  a  court. 

A  court  is  organized  and  sustained  to  enforce  the  law.  The 
law  is  composed  of  such  rules  of  conduct  as  the  community  think 
it  worth  while  to  endeavor  to  compel  obedience  to;  whether 
these  rules  of  conduct  come  down  from  the  forefathers  or  are 
laid  down  by  contemporary  authority.  The  law  is  made  effective 
by  various  sanctions,  so  that  the  violator  shall  pay  in  "meal  or 
malt,"  in  person  or  pocket. 

The  course  of  evolution  has  been  gradually  to  eliminate  from 
the  determination  of  disputes  the  power  of  the  disputants,  their 
physical  prowess,  and  finally  their  influence  and  social  standing. 
Ultimately,  in  all  free  countries,  all  men  are  free  and  equal  before 
the  law;  no  longer  is  the  wager  of  battle  allowed,  and  no  baron 
can  now  overawe  the  court.  So  all  civilized  societies  have  long 
had  courts  to  declare  and  insure  his  rights  for  everybody. 

But  while  the  state  considered  it  wholly  necessary  that  dis- 
putes between  citizens  should  be  decided  by  some  judicial  tri- 
bunal and  not  by  the  strong  hand,  the  same  principle  has  not 


36  JUDICIAL  SETTLEMENT 

been  fully  adopted  in  cases  of  disputes  between  nations.  Inter- 
national law  has  laid  down  rules  indeed,  but  these  rules  might  be 
disregarded  at  will;  the  only  penalty  being  the  unfavorable  public 
opinion  of  the  world.  This  public  opinion  never  had  the  force 
of  the  public  opinion  of  a  primitive  community. 

Whether  by  evolution  upward  or  devolution  downward,  I 
shall  leave  to  theologians  and  scientists  to  determine,  when  man 
first  appeared  as  man  he  was  little  removed  from  the  brute.  When 
any  one  differed  from  him,  his  only  means  of  argument  was  the 
means  of  argument  provided  for  the  brute,  from  whom  he  was 
little  differentiated;  the  argument  of  force,  improved  by  the  use 
of  a  weapon,  a  club.  So  the  only  way  to  determine  the  right  of 
man  or  woman  was  through  the  use  of  brute  force,  and  this  was 
extended  to  the  case  of  the  rights  of  family,  sept,  clan,  city,  na- 
tion. The  God  of  Battles  was  the  final  arbiter,  and  man  believed, 
as  nine  out  of  ten  unenlightened  men  still  believe,  that  war  was 
a  necessity.  True,  hi  disputes  within  the  bosom  of  a  nation, 
means  have  been  found  to  dispose  of  controversy  without  a  phys- 
ical encounter;  the  exertions  of  counsel  take  the  place  of  the  ex- 
ertions of  litigant  or  champion;  but  between  nations  the  case  is 
different.  .  .  .  The  Supreme  Court  of  the  United  States 
has  been  for  more  than  one  hundred  years  dealing  with  disputes 
between  sovereign  States;  the  Supreme  Court  of  Canada  and  the 
Judicial  Committee  of  the  Privy  Council  at  Westminster  for  a 
shorter  period.  These  states  are  not  indeed  sovereign  in  the 
sense  that  they  can  declare  war  against  each  other;  nor,  what  is 
equally  war  of  a  kind,  can  they  levy  imposts  upon  interstate  com- 
merce. But  in  many  a  case  these  courts  have  determined  matters 
of  as  great  importance  as  are  usually  determined  by  war.  It  is 
not  necessary  in  this  place  to  mention  any  of  the  decisions  of 
your  Supreme  Court.  It  may  be  of  interest,  however,  to  mention 
one  in  Canada. 

In  1876  the  Dominion  of  Canada  by  statute  (39  Vic.  C.  21)  set 
apart  and  formed  a  new  territory,  Keewatin,  beginning  at  the 


RIDDELL  37 

western  boundary  of  Ontario  and  extending  west  to  the  eastern 
boundary  of  Manitoba;  and  placed  this  new  territory  under  the 
jurisdiction  of  the  Parliament  of  Manitoba.  Unfortunately,  the 
westerly  boundary  of  the  Province  of  Ontario  was  a  matter  of 
dispute,  the  Dominion  claiming  that  the  line  was  much  further 
east  than  the  province  put  it.  At  once  there  arose  a  dispute 
between  the  Province  of  Manitoba  and  the  Province  of  Onta- 
rio; and  actually  each  province,  Ontario  and  Manitoba,  had  an 
armed  force  in  the  disputed  territory,  and  it  looked  as  though 
two  armies,  each  commanded  by  officers  bearing  the  patent  and 
warrant  of  the  same  queen,  would  come  to  open  war  in  that  ter- 
ritory. Better  counsels  prevailed,  however.  Arbitration  failed, 
and  it  was  ultimately  left  to  the  Judicial  Committee  of  the 
Privy  Council,  the  highest  court  of  appeal  in  the  British  Em- 
pire. That  is  an  instance  of  a  British  court  dealing  with  a  mat- 
ter of  territory. 

Why  cannot,  then,  practically  all  disputes  between  nations  be 
determined  in  the  same  way  by  a  judicial  body?  Of  course, 
there  are,  or  rather  may  be,  questions  affecting  the  honor  of  a 
state.  No  man  and  no  state  can,  it  is  supposed,  allow  another 
to  judge  of  his  or  its  honor.  Now,  I  do  not  suggest  that  there 
should  be  an  international  court  to  decide  whether  a  nation  must 
fight  in  order  to  be  considered  honorable,  as  in  the  German  army 
there  are  courts  of  honor  to  decide  whether  a  man  shall  fight; 
but  in  most  instances,  if  not  in  all,  there  is  doubt  of  the  facts, 
and  the  facts  being  determined,  there  is  seldom  any  difficulty  in 
deciding  whether  a  nation  should  fight.  Why  should  not  the 
facts  be  determined  by  an  impartial  tribunal? 

We  have  a  law  in  Canada  that  employees  must  not  strike  or 
employers  lock  out,  unless  and  until  an  arbitration  has  been  had 
into  the  merits  of  the  controversy.  After  the  arbitration,  the 
men  or  the  masters  may  decline  to  accept  the  award,  and  strike 
or  lock  out.  But  the  arbitration  brings  out  the  facts;  and  the 
instance  is  rare  in  which  an  award  is  not  accepted,  with  modifi- 
cations, it  may  be,  agreed  upon  by  both  parties. 


38  JUDICIAL  SETTLEMENT 

If  nations  would  "submit  the  facts  to  an  impartial  tribunal,  the 
occasions  for  war  would  be  reduced  indefinitely. 

The  independence  of  a  state,  of  course,  cannot  be  arbitrated 
upon;  but  a  war  to  destroy  independence  is  in  this  age  absolutely 
unthinkable. 

The  main  objection  to  a  general  and  absolute  treaty  of  arbi- 
tration lies  in  the  want  of  an  authoritative  code  of  laws  governing 
states,  as  the  municipal  laws  of  a  state  govern  its  citizens.  That 
objection  is  rapidly  disappearing.  Through  the  labors  of  inter- 
national lawyers,  a  fair  body  of  international  law  has  already 
been  elaborated,  which  has  received  the  implied  assent  of  civilized 
powers.  Would  it  be  too  much  to  hope  that  the  Hague  Confer- 
ence or  the  Permanent  Court  of  Arbitration  may  be  able  to  draw 
up  a  complete  code  of  law  by  which  all  nations  would  consent  to 
be  bound?  Or  is  it  too  much  to  hope  that  the  body  of  gentle- 
men who  have  been  appointed  by  my  friend  Mr.  Carnegie 
recently — I  dare  to  call  him  my  friend  Mr.  Carnegie,  because, 
although  I  never  shook  him  by  the  hand  until  to-night,  I  insist 
upon  being  allowed  to  call  every  friend  of  peace,  my  friend — is  it 
too  much  to  ask  of  these  gentlemen,  who  are  envied  by  every 
judge  in  the  land  that  they  shall  have  a  code  of  international  law 
drawn  up,  which  will  be  binding — for  it  would  be  binding — upon 
the  nations? 

A  beginning  was  made  in  this  direction  in  the  Washington 
Treaty  of  1871,  in  which  the  contracting  parties  agreed,  by  Arti- 
cle VI,  upon  the  duties  of  a  neutral  government  so  far  as  it  was 
necessary  for  the  purposes  of  the  arbitration  at  Geneva.  It 
might  well  be  that  the  most  carefully  drawn  code  would  be  found 
not  to  cover  certain  matters.  The  casus  omissus  is  always 
coming  up  in  ordinary  litigation.  What  harm  could  result 
from  allowing  the  board  to  supply  any  casus  omissus  ? 

Now,  Mr.  President,  Ladies  and  Gentlemen,  before  I  sit  down 
I  wish  to  say  one  thing  more. 

It  may  be  a  mere  coincidence — if  so,  it  is  a  happy  coincidence — 


RIDDELL  39 

that  the  last  letter  I  received  before  leaving  Toronto  to  attend 
this  meeting  was  from  the  president  and  secretary  of  the  Cen- 
tenary Celebration  Association  which  has  been  formed  in  the 
Province  of  Ontario,  urging  me  most  earnestly  to  attend  a  meet- 
ing of  that  organization.  Here,  amongst  other  things,  is  what 
they  say: 

"The  promoters  of  this  centenary  celebration  heartily  approve 
of  the  movement  which  has  been  started  for  an  international 
celebration  in  1914  or  1915,  of  the  century  of  peace,  but  they 
hope  that  it  will  not  be  confined  to  Canada  or  the  British  Empire 
and  the  United  States.  The  War  of  1812  arose  out  of  the  Napo- 
leonic struggle" — 

That,  perhaps,  is  not  a  correct  historical  statement,  but  we  will 
pass  that — 

"and  both  wars  came  to  an  end  in  the  same  year.  There 
has  been  a  century  of  Anglo-French  as  well  as  American  peace, 
and  the  present  entente  cordiale  between  Great  Britain  and 
France  amounts  to  a  practical  alliance  for  the  maintenance  of 
international  stability  and  general  peace. 

"Besides,  France  is  one  of  the  mother  countries  of  the  Cana- 
dian people,  and  her  millions  of  Canadian  descendants  will  more 
heartily  join  in  the  celebration  if  she  takes  part. 

"We  venture  to  hope,  too,  that  so  far  as  the  United  States  is 
concerned,  the  celebration  will  consist  of  more  than  neighborly 
courtesies  and  compliments  and  the  erection  of  monuments  of 
peace.  It  should  include  something  definite  and  practical  for 
the  purpose  of  securing  future  centuries  of  peace  between  the 
two  countries — something  that  will  amount  to  a  final  recogni- 
tion on  the  part  of  the  United  States  of  Canada's  rights  to  work 
out  her  own  destiny  on  this  continent  as  one  of  the  great  national 
units  in  the  empire  of  nations  under  the  British  Crown.  The 
best  evidence  of  peaceful  intentions  would  probably  be  a  new 
treaty  perpetuating  as  nearly  as  possible  the  terms  of  the  Rush- 
Bagot  convention  (now  terminable  on  six  months'  notice)  pro- 


40  JUDICIAL  SETTLEMENT 

hibiting  armaments  upon  the  Great  Lakes  such  armaments, 
being  useless  to  the  United  States  against  any  other  nation  but 
Canada." 

My  friends,  we  have  got  far  away  from  the  club  law  in  most 
instances.  Is  it  too  much  to  expect  that  the  two  great  English- 
speaking  nations,  composed  largely  of  the  same  race  and  having 
in  general  the  same  descent,  speaking  the  same  tongue,  worship- 
ping the  same  God  under  the  same  forms,  having  practically 
the  same  institutions  and  having  the  same  great  aims  and  inter- 
ests— is  it  too  much  to  expect  that  these  two  nations  will  set  the 
example  to  the  world  of  the  total  abolition  of  this  fiendish  club 
law  in  international  matters  as  well?  God  speed  the  day! 

THE  PRESIDING  OFFICER  (Scon) :  Ladies  and  gentlemen,  you 
have  heard  from  a  diplomat,  you  have  heard  from  a  statesman, 
you  have  heard  from  a  judge.  I  am  quite  sure  you  will  be  plea- 
sed to  hear  a  few  remarks  from  a  university  president.  I  have 
the  great  pleasure  to  introduce  Doctor  Benjamin  Ide  Wheeler, 
President  of  the  University  of  California,  who  will  address  you 
on  "The  Advance  from  Force  to  Reason." 

THE  ADVANCE  FROM  FORCE  TO  REASON 

BENJAMIN  IDE  WHEELER 

We  come  so  seldom  to  see  you  that  we  are  not  sure  always  that 
we  remain  in  the  main  creed  of  your  orthodoxy,  but  I  shall  be 
orthodox  tonight.  I  am  never  indeed  quite  sure  that  California 
will  not  some  day  declare  war  without  having  thought  to  consult 
you  about  it.  We  live  off  there  alone  by  ourselves,  a  great 
province,  like  the  province  of  Tigranes  and  Mithridates,  and  you 
do  not  care  much  for  us  or  know  much  about  us.  When  we  try 
to  make  you  hear,  we  verily  bellow  our  wants  to  you  across  the 
continent,  and  we  have  some  views  of  our  own.  I  may  not  be 
a  mouthpiece  to  express  them,  but  I  hasten  to  tell  you  what  I 


WHEELER  41 

think  we  think  about  the  matter  of  peace  and  war.  The  old  fash- 
ioned war  that  we  as  children  rejoiced  to  study  about  was  a  form  of 
sport,  but  that  has  passed  away.  The  poeple  of  a  Beotian  village 
used  to  get  up  on  a  spring  morning  and  go  over  to  Megara  to  do 
war.  It  was  a  form  of  picnic.  They  had  no  better.  The  best  way 
to  take  a  trip  to  see  the  world,  indeed  the  standard  form  of  person- 
ally conducted  traveling  in  those  days,  was  to  make  an  incursion 
into  the  enemy's  country.  I  can  imagine  nothing  more  delight- 
ful in  travel  than  what  those  old  Macedonians  experienced  who 
rode  on  their  horses  by  the  side  of  Alexander  and  with  the  help 
of  their  long  spears  visited  all  the  chief  points  of  interest  in  the 
then  known  world.  But  that  has  passed  away.  We  have  laid 
aside  war  as  a  sport,  and  it  has  become  a  complicated  mechanism, 
with  so  much  mere  cam  and  cog  action  in  it  that  a  man  no  longer 
has  the  delight  of  seeing  eye  to  eye,  the  man  he  kills.  He  shoots 
off  into  the  distance  and  kills  somebody's  son,  he  knows  not  whose. 
I  was  impressed  with  this  not  long  ago,  when  I  was  at  West  Point, 
viewing  the  action  of  a  new  machine  gun;  I  saw  them  turning  it 
cleverly  and  easily  with  a  handle  that  may  have  been  uphol- 
stered, and  spattering  shot  all  over  a  canvas  that  stretched  for  an 
eighth  of  a  mile  along  a  hillside.  One  could  play  with  it  just  as 
if  it  were  a  garden  hose,  and  instead  of  watering  the  lawn,  could 
mow  men  down  in  battalions.  When  it  gets  to  that,  we  have 
passed  beyond  the  scope  of  flesh  and  blood,  beyond  the  range  of 
sport  and  all  other  humanities,  and  have  entered  the  domain  of 
mechanics.  War  is  throttling  itself  by  the  very  mechanism  of  it. 
I  confess,  furthermore,  never  to  have  seen  why  preparedness 
for  war  should  not  constitute  also  one  of  the  means  of  killing  war 
out.  I  think  that  we  as  a  nation  are  taking  a  great  risk  today 
by  our  lack  of  preparation  for  national  defense.  I  am  in  favor 
of  preparation  for  national  defense  as  a  means  of  preventing 
war.  In  the  midst  of  Europe  stands  a  nation  that  you  speak 
of  as  a  warlike  nation.  I  know  the  people  thereof.  They 
are  a  peaceable  people,  a  kindly  people  in  their  hearts  and 


42  JUDICIAL  SETTLEMENT 

homes,  not  a  warlike  people.  Germany  stands  there  firmly  in 
the  middle  of  Europe,  a  heavy  paper  weight  laid  onto  the  disjected, 
scattered  papers  of  the  European  writing  desk.  I  heard  the  man 
who  is  responsible  for  that  nation  say  not  long  ago  with  pain 
that  he  wondered  how  people  who  talked  so  much  of  the  German 
peril  had  never  noticed  he  had  had  under  his  hand  during  all 
his  rule  a  very  competent  war  machine  but  he  had  used  it  only 
in  the  interest  of  European  peace.  I  am  not  so  sure  that  they 
will  not  some  day  award  that  man  the  Nobel  Prize.  I  favor  it. 
At  any  rate  it  seems  to  me  in  these  days  that  we  have  no  right 
to  depart  from  the  ordinary  maxims  of  self  interest  in  preparing 
for  war.  Preparedness  will  give  strength  to  the  decrees  of  the 
court  we  shall  establish.  Is  it  not  coming  about  that  the  nations 
of  North-European  blood  are  to  police  the  world  in  the  interest 
of  order  and  commerce  and  intercourse?  I  believe  that  these 
nations  will  regulate  the  world  for  its  good.  Taking  history  by 
and  large  they  are  especially  the  peoples  who  stand  for  even  jus- 
tice, for  an  equal  footing  before  the  law. 

We  have  talked  a  great  deal  about  peace.  We  have  been  in 
favor  of  it.  Who  is  not  in  favor  of  it?  I  confess  that  the  hard 
thing  to  do  in  talking  for  peace  is  to  find  anybody  who  is  in  favor 
of  war.  There  are  some  people  who  talk  about  the  desirability 
of  keeping  nations  on  the  fighting  edge;  but  we  educators  who  are, 
or  think  we  are  commissioned  to  keep  the  public  temperament  in 
order,  are  prepared  to  administer  for  that  purpose  our  well- 
known  academic  recipe  of  football. 

I  believe  the  difficulty  is  that  we  have  spent  our  strength  in 
talking  and  that  no  definite  mechanism  has  been  provided  which 
has  permanency,  and  which  by  having  permanency  will  shame 
every  nation  intt)  using  it.  I  certainly  expect  that  the  advance 
of  the  settlement  of  international  disputes  by  judicial  action  will 
be  speedy.  I  believe  it  is  only  necessary  that  the  tribunal  be 
constituted  as  a  permanent  body,  when  the  nations  of  the  Euro- 
pean world  will  accept  it.  If  we  can  avert  war  for  two  decades 


DISCUSSION  43 

more,  the  European  nations  will  see  that  they  have  work  enough 
laid  out  for  them  in  bringing  the  Orient  to  its  place  in  the  world, 
and  that  they  had  better  regard  each  others  resources  as  a  common 
stock  and  seek  to  husband  rather  than  to  destroy. 

It  is  a  time  for  us  to  put  away  childish  things.  The  world  of 
men  is  advancing  to  the  years  of  discretion,  and  war  has  come  to 
be  childish  and  absurd.  The  world  is  emerging  out  of  the  mists 
of  caprice  and  sport  in  the  regulation  of  human  affairs,  and  weight 
of  judgment,  reasonableness,  sweet  reasonableness,  and  the  pa- 
tience of  maturity  are  tending  to  prevail  amongst  the  sons  of  men. 

THE  PRESIDING  OFFICER  (Scoxx) :  It  is  frequently  said  that  the 
existence  of  a  court  of  justice  to  which  nations  may  submit 
their  controversies  will  preserve  peace.  It  is  also  frequently  said 
that  the  controversies  which  have  given  rise  to  war  were  of  such  a 
nature  that  they  could  not  be  settled  by  courts  of  justice  or  by 
peaceable  means.  If,  indeed,  these  controversies  could  not  have 
been  settled  by  submission  to  tribunals,  or  by  commissions  of 
arbitration,  then  our  Society  has  in  large  part  lost  its  reason  for 
being  here,  because  we  believe  that  many  of  the  causes  which  in 
the  past  have  produced  war  might  have  been  referred  to  a  judi- 
cial tribunal  and  settled  by  judicial  methods,  without  producing 
armed  conflict.  For  the  success  of  our  cause  it  is  necessary  that 
we  set  our  own  house  hi  order,  that  we  examine  our  own  conduct 
hi  the  past,  that  we  test  the  questions  which  produced  the  foreign 
wars  of  the  United  States,  hi  order  to  be  sure  of  the  rightfulness 
of  our  position. 

Ladies  and  gentlemen,  I  have  the  pleasure  of  introducing  to 
you  to-night  one  who  has  served  his  country  on  the  field  of  battle 
and  who  knows  from  personal  knowledge  and  experience  what 
war  is  and  what  it  decides  or  rather  fails  to  decide,  who  as  a 
diplomat  by  profession  is  familiar  with  the  methods  of  diplomacy 
and  the  possibility  of  diplomatic  settlement  of  international 
controversies;  who  as  a  former  Secretary  of  State  knows  how 


44  JUDICIAL  SETTLEMENT 

nations  may  refer  honorably  to  arbitration  their  disputes  which 
diplomacy  has  failed  to  adjust,  and  who  as  representative  of  the 
United  States  has  actually  conducted  arbitrations  to  which  his 
country  was  a  party,  the  Honorable  John  W.  Foster. 

WERE  THE  QUESTIONS  INVOLVED  IN  THE  FOREIGN 
WARS  OF  THE  UNITED  STATES  OF  SUCH  A  NA- 
TURE THAT  THEY  COULD  HAVE  BEEN  SUBMIT- 
TED TO  ARBITRATION  OR  SETTLED  WITHOUT 
RECOURSE  TO  WAR?1 

JOHN  W.  FOSTER 

Mr.  President,  Ladies  and  Gentlemen:  I  have  been  requested 
by  the  President  of  this  Society  to  discuss  the  topic:  Were  the 
questions  involved  in  the  foreign  wars  of  the  United  States  of 
such  a  nature  that  they  could  have  been  submitted  to  arbitra- 
tion and  decided  without  recourse  to  war?  The  desired  discus- 
sion embraces  a  consideration  of  the  War  of  1812  with  Great 
Britain,  the  war  of  1846  with  Mexico,  and  the  war  of  1898 
with  Spain. 

The  causes  of  complaint  on  the  part  of  our  government  which 
resulted  in  the  War  of  1812  with  Great  Britain  are  set  forth  at 
some  length  in  what  is  known  as  the  War  Message  of  President 
Madison,  sent  to  Congress  June  i,  i8i2.2  These  causes  as  there 

1  Before  reading  his  paper  Mr.  Foster  said  he  had  made  an  address  on  a  similar  topic 
some  months  before  at  a  meeting  of  the  American  Peace  Society  in  Hartford,  and  that 
he  had  been  severely  criticised  by  a  portion  of  the  press  for  giving  utterance  to  unpatri- 
otic sentiments  and  defaming  his  country.  In  view  of  this  he  asked  the  indulgence  of 
his  audience  for  making  a  personal  statement.  He  did  not  belong  to  a  "  peace-at-any- 
price  "  family.  His  great-grandfather  went  through  the  Revolutionary  War  as  a  Virginia 
rifleman.  His  grandfather  fought  with  Harrison  at  Tippecanoe  and  in  his  Canadian 
campaign.  Members  of  his  family  went  to  Kansas  with  their  rifles  in  the  fifties  to 
save  that  territory  to  freedom.  And  he  himself  gave  nearly  four  of  the  best  years  of 
his  life  as  a  volunteer  in  the  Civil  War  to  maintain  the  Union.  He,  therefore,  claimed 
the  right  to  discuss  the  historical  events  of  our  country  without  being  charged  with 
disloyalty. 

1  Messages  and  Papers  of  the  Presidents,  Vol.  I,  499. 


FOSTER  45 

enumerated  may  be  briefly  stated  in  their  order:  (i)  The  visita- 
tion of  American  vessels  on  the  high  seas  and  the  impressment 
of  members  of  their  crews  for  the  British  navy,  (2)  infringement 
of  American  waters  by  British  cruisers,  (3)  a  sweeping  system  of 
blockades  coupled  with  the  Orders  in  Council,  and  (4)  inciting 
the  Indians  to  insurrection.  It  will  be  shown  that  the  single 
question  upon  which  the  war  was  finally  declared  was  that  of 
blockade,  and  that  immediately  after  the  war  began  the  question 
was  transferred  to  impressment,  both  of  which  are  pure  subjects 
of  international  law  and  practice. 

It  is  difficult  at  this  epoch  hi  our  history  to  understand  how  the 
conduct  of  our  government  at  that  tune  can  be  questioned,  and 
why  war  was  not  unavoidable  hi  order  to  maintain  the  just  rights 
of  the  country  and  the  national  honor.  The  chief  reason  for  this 
is  that  the  development  of  international  law  respecting  the  ques- 
tions then  in  controversy  has  been  so  great  in  the  last  hundred 
years  that  we  wonder  how  a  discusssion  against  the  claims  of  the 
United  States  could  be  maintained. 

In  view  of  the  intense  bitterness  which  that  contest  engendered 
within  our  own  borders,  I  shall  confine  my  citation  of  authorities 
to  the  historians  who  have  recorded  the  events  of  that  period 
after  the  lapse  of  more  than  two  generations,  who  were  free 
from  prejudice,  and  who  had  access  to  the  European  archives. 
Happily  this  material  is  abundant.  Henry  Adams  in  his  excellent 
History  of  the  United  States  during  the  Administration  of  Madison , 
has  treated  of  this  war  at  great  length;  likewise  Admiral  Mahan, 
in  his  Sea  Power  in  its  Relations  to  the  War  of  1812;  also  McMaster, 
Schouler,  Woodrow  Wilson,  Goldwin  Smith,  and  Hart. 

Before  examining  the  questions  of  international  law  let  us  con- 
sider some  phases  of  the  war,  which  may  aid  us  in  determining 
whether  the  matters  in  controversy  could  have  been  submitted 
to  arbitration  or  decided  without  recourse  to  war. 

i.  The  War  of  1812  was  a  partisan  and  sectional  war.  In  this 
respect  it  was  quite  different  from  the  Mexican  and  Spanish  wars. 


46  JUDICIAL   SETTLEMENT 

While  there  was  considerable  opposition  to  both  of  the  latter, 
the  declarations  of  war  were  voted  by  Congress  with  practical 
unanimity,  and  they  received  the  support  of  the  whole  country. 
The  vote  by  which  the  War  of  1812  was  carried  after  a  bitter  and 
prolonged  debate  was,  in  the  House  79  to  49,  and  in  the  Senate 
19  to  13.  The  New  England  States  were  largely  against  it; 
likewise  New  York,  New  Jersey  and  Delaware.  Pennsylvania, 
Maryland,  Virginia,  and  North  Carolina  were  divided,  but  their 
votes  for  war  predominated,  and  the  other  Southern  and  all  the 
Western  States  were  solidly  for  war.  Schurz,  in  his  Life  of 
Henry  Clay,  remarks  on  this  vote:  "So  large  a  minority  had  an 
ugly  look.  It  signified  that  there  would  be  a  peace  party  in  the 
United  States  during  the  war."3 

The  circumstances  of  the  times  indicated  that  the  war  had  been 
determined  upon  as  a  party  measure,  and  that  it  was  not  only  a 
party  measure  but,  as  Henry  Adams  terms  it,  "avowedly  for 
purposes  of  conquest."  Henry  Clay,  Speaker  of  the  House, 
gathered  around  him  a  body  of  ardent  young  members,  known 
in  history  as  the  "War  Hawks,"  Calhoun,  Grundy  and  others, 
and  organized  the  committees  with  the  view  of  bringing  on  the 
war.  Slight  disguise  was  made  of  the  purpose  to  conquer  Canada. 
As  early  as  January,  1811,  Clay,  in  discussing  a  retaliatory  bill 
against  Great  Britain,  declared:  "The  conquest  of  Canada  is  in 
your  power.  I  trust  I  shall  not  be  deemed  presumptuous  when 
I  state  that  I  verily  believe  that  the  militia  of  Kentucky  are  alone 
competent  to  place  Montreal  and  Upper  Canada  at  your  feet." 
His  memorable  speech  on  the  army  bill,  as  epitomized  by  his 
biographer,  anticipated  the  results  of  the  war.  "It  was  to  be  an 
aggressive  war,  a  war  of  glorious  conquest.  He  saw  the  battalions 
of  the  Republic  marching  victoriously  through  Canada  and  laying 
siege  to  doomed  Quebec.  His  dream  was  of  a  peace  dictated  at 
Halifax."  Grundy,  in  defending  the  report  of  the  Committee  on 

8  For  table  of  votes,  see  3  McMaster's  History  of  the  People  of  the  United  States,  457; 
i  Schurz,  Life  of  Henry  Clay,  85. 


FOSTER  47 

Foreign  Affairs  favoring  war,  said,  "We  shall  drive  the  British 
from  our  continent.  ...  I  feel  anxious  not  only  to  add  the 
Floridas  to  the  South,  but  the  Canadas  to  the  North  of  this 
Empire."  Calhoun,  participating  in  the  debate,  expressed  the 
belief  "that  in  a  few  weeks  from  the  time  that  a  declaration  of 
war  is  heard  on  our  frontier  the  whole  of  Upper  Canada  and  a 
part  of  Lower  Canada  will  be  in  our  possession."  The  comment 
of  John  Randolph,  after  listening  long  and  patiently  to  the 
debate,  was:  "Ever  since  the  report  of  the  Committee  on  Foreign 
Affairs  came  into  the  House  we  have  heard  but  one  word — like 
the  whippoorwill,  but  one  monotonous  tone — Canada,  Canada, 
Canada."4 

President  Madison  was  by  inclination  a  man  of  peace  and  did 
not  want  war.  In  fact  he  showed  such  reluctance  to  the  pro- 
gram of  the  party  leaders  that  it  was  openly  charged  that  he  had 
been  coerced  into  supporting  hostilities  by  the  threat  that  he 
would  not  be  renominated  for  the  presidency  unless  he  yielded 
to  their  demands.  This  charge  is  not  substantiated,  but  the 
Congressional  caucus  (which  at  that  period  made  the  nomination) 
was  not  called  until,  as  McMaster  puts  it,  "  Madison  had  fully 
committed  himself  to  the  war."3  Mr.  Monroe,  Secretary  of 
State,  explained  to  the  French  minister  Madison's  hesitating 
policy  by  saying,  "the  President  does  indeed  hold  the  rudder  of 
the  Ship  of  State;  he  guides,  but  it  is  public  opinion  which 
makes  the  vessel  move." 

The  government  was  not  only  unprepared  to  enter  upon 
hostilities  with  Great  Britain,  but  the  country  had  shown  itself 
reluctant  to  engage  in  it  with  enthusiasm.  The  call  for  a  large 
increase  in  the  army,  which  had  been  made  hi  anticipation  of  war, 
had  been  but  feebly  responded  to;  only  half  the  popular  loan  had 

4  Henry  Adams'  History  of  the  United  States,  Ed.  1889,  vol.  V,  189;  VI,  124,  141,  145, 
154,  212,  229.  Goldwin  Smith's  Political  History  of  the  United  States,  168, 170;  2  Schurz' 
Life  of  Clay,  79;  3  Woodrow  Wilson's  History  of  the  American  People,  Ed.  1902,  p.  212. 

*3,  W.  Wilson's  History,  etc.,  207;  G.  Smith's  History,  etc.,  168,  172;  3,  McMaster's  His- 
tory, 449;  6,  Adams'  History,  etc.,  213.  2,  Schouler's  History  of  the  United  States,  387. 


48  JUDICIAL  SETTLEMENT 

been  subscribed;  and  the  resources  of  the  treasury  were  nearly 
exhausted.  Woodrow  Wilson  reflects  the  views  of  the  modern 
historians  when  he  says:  "It  was  a  foolhardy  and  reckless  risk 
the  Congress  was  taking  .  .  .  What  was  worse,  the  risk  of 
the  war  was  not  a  whit  more  obvious  than  its  deep  impolicy." 
Goldwin  Smith,  in  noticing  the  terms  of  peace  at  the  conclusion 
of  the  war,  says:  "It  was  a  peace  which  showed  that  there 
ought  to  have  been  no  war,  for  no  question  was  settled,  nor  was 
anything  surrendered  on  either  side."6 

2.  The  War  of  1812  presents  the  strange  and  unique  instance 
of  a  nation  entering  upon  hostilities  to  redress  the  injuries  suf- 
fered by  a  portion  of  its  inhabitants  who  were  bitterly  opposed 
to  the  war  and  who  did  all  within  their  power  short  of  treason  to 
obstruct  its  success.    The  vote  of  Congress  already  cited  shows 
that  New  England  and  New  York  voted  against  the  declaration  of 
war.    These  were  the  States  which  represented  the  ocean  com- 
merce of  the  country,  and  the  avowed  object  of  the  war  was  to 
protect  this  commerce.    The  minority  in  Congress  issued  a  signed 
protest  in  which  they  denounced  the  anomaly  of  waging  war  to 
redress  the  wrongs  of  a  section  which  opposed  it.    The  record  of 
the  historians  is  that "  the  very  States  which  had  suffered  most  from 
impressments  as  well  as  assaults  on  neutral  commerce  opposed 
the  war  most  bitterly";  which  opposition,  Henry  Adams  says, 
"left  the  government  bankrupt,  and  nearly  severed  the  Union."7 

3.  The  War  of  1812  was  declared  before  diplomatic  recourse 
had  been  exhausted. 

This  is  manifest  from  the  fact  that  on  the  day  before  war  was 
declared  Parliament  voted  the  repeal  of  the  Orders  in  Council, 
the  announced  cause  of  the  war.  Adams,  who  has  discussed 
this  phase  of  the  question  fully,  states  that  "  the  people  of  Eng- 

*3,  Wilson's  History,  216;  6,  Adams'  History,  223;  i,  Mahan's  Sea  Power  in  its  Rela- 
tions to  the  War  of  1812,  Ed.  1905,  pp.  279-282. 

T  3,  McMaster's  History,  457;  13,  The  American  Nation,  a  History,  edited  by  A.  B.  Hart, 
Ed.  1906,  pp.  71,  77;  6,  Adams'  History,  224. 


FOSTER  49 

land  never  wanted  war  with  the  United  States";  and  this  is  con- 
firmed by  other  historians.  While  that  country  was  in  a  life- 
and-death  struggle  with  Napoleon  the  government  was  granted 
extreme  powers,  but  when  it  came  to  an  issue  of  war  with  the 
United  States  Parliament  forced  the  ministry  to  yield  to  our 
contention. 

William  Pinkney,  who  was  one  of  the  ablest  representatives 
we  ever  sent  to  London,  resigned  his  post  and  returned  to  this 
country  one  year  before  war  was  declared,  leaving  "the  young 
secretary"  in  charge,  and  later  Mr.  Russell  was  detailed  from  the 
legation  hi  Paris  as  charge  d'affaires.  Mr.  Adams  states  that 
"at  that  moment  when  the  Prince  Regent  announced  his  readi- 
ness lo  withdraw  the  Orders  in  Council,  when  satisfied  that  the 
Berlin  and  Milan  Decrees  were  repealed,  had  the  United  States 
been  so  fortunate  as  to  enjoy  the  services  of  Pinkney  in  London, 
or  any  man  whose  position  and  abilities  raised  him  above  the 
confusion  of  party  politics,  he  might  have  convinced  them  that 
war  was  unnecessary.  .  .  .  Unfortunately  the  United 
States  had  no  longer  a  minister  hi  London." 

Parliament  met  in  January,  1812,  and  the  speech  from  the 
Throne  "was  studiously  moderate"  in  its  references  to  our 
affairs,  closing  with  the  declaration  "that  England  could  bear 
more  from  America  for  peace's  sake  than  from  any  other  power 
on  earth."  The  debate  which  followed  running  through  some 
months  indicated  the  growing  weakness  of  the  ministry;  and  the 
state  of  the  country,  Adams  records,  showed  "that  concessions 
were  inevitable,"  and  that  accommodation  with  the  United  States 
could  not  long  be  deferred.  This  condition  of  affairs  in  England 
was  known  to  intelligent  and  open-minded  men  in  this  country 
and  after  the  passage  of  the  embargo  bill,  which  was  the  prelim- 
inary step  toward  war,  it  is  understood  that  the  moderate,  men 
in  the  Republican  party  had  partially  persuaded  the  President 
to  send  a  special  envoy  to  London.  Schouler  states  that  had  a 
suitable  envoy,  with  fair  credentials,  been  dispatched  at  this 


50  JUDICIAL  SETTLEMENT 

moment  the  War  of  1812  would,  in  all  probability,  have  been 
averted."  McMaster's  conclusion  is  that  "had  the  wishes  of 
these  men  prevailed  James  A.  Bayard  would  have  been  dispatched 
to  London,  would  have  laid  an  ultimatum  before  the  Prince 
Regent,  and  the  war  for  commercial  independence  would  never 
have  been  fought.  This  Henry  Clay  defeated."  Adams  sagely 
remarks:  "In  secret,  diplomacy  flattered  itself  that  war  would 
still  be  avoided;  but  it  reckoned  without  taking  into  account  the 
temper  of  Congress."8 

4.  The  War  of  1812  was  begun  upon  an  erroneous  statement 
of  vital  facts. 

The  paper  blockades  of  England  and  France  and  the  seizure 
and  condemnation  or  destruction  of  American  vessels  as  a  result 
thereof  were  the  main,  and  finally  the  single,  cause  of  the  war. 
President  Madison  based  the  declaration  on  a  French  decree  pur- 
porting to  repeal  the  objectionable  French  blockades,  which  decree 
was  manifestly  untrustworthy  and  proved  to  be  fraudulent. 
These  blockades  began  with  the  British  declarations  of  1804  and 
1806,  followed  by  the  Berlin  Decree  of  1806,  the  British  Orders 
in  Council  of  November,  1807,  and  the  Milan  Decree  of  Decem- 
ber, 1807.  As  early  as  1810  Napoleon's  minister  declared  to  the 
American  minister  in  Paris  that  the  Berlin  and  Milan  Decrees 
had  been  repealed  as  against  American  commerce,  but  the  seizure 
and  condemnation  of  American  merchant  vessels  by  French 
cruisers  continued.  After  much  discussion  between  the  French 
and  American  governments  and  the  British  and  American  gov- 
ernments as  to  the  fact  of  the  repeal,  finally  the  Prince  Regent  of 
Great  Britain  issued  an  Order  in  Council,  April  21,  1812,  declar- 
ing that  if  the  Berlin  and  Milan  Decrees  should  be  absolutely  and 
unconditionally  repealed,  by  some  authentic  act,  publicly  pro- 
mulgated, then  the  British  Orders  in  Council  would  be  wholly 
and  absolutely  revoked. 

'Adams'  History,  V,  74;  VI,  132, 189,  196,  216,  268,  282;  2  Schouler's  History,  389;  3, 
McMaster's  History,  450. 


FOSTER  51 

This  declaration  was  at  once  brought  to  the  attention  of  the 
French  minister  of  foreign  affairs  by  the  American  minister,  with 
a  demand  that  he  be  furnished  with  authentic  evidence  that  the 
Berlin  and  Milan  Decrees  had  been  repealed.  "Then  came," 
says  Henry  Adams, ' '  the  climax  of  Imperial  diplomacy. ' '  He  adds 
that  neither  Talleyrand  or  other  French  minister  of  the  pe- 
riod had  shown  repugnance  to  falsehood,  but  that  the  act  of  Bas- 
sano,  the  minister  of  foreign  affairs,  was  a  species  of  duplicity  on 
which  they  would  hardly  have  ventured.  He  produced  a  decree 
signed  by  Napoleon,  purporting  to  be  dated  one  year  previous, 
April  28,  1811,  declaring  the  repeal  of  the  Berlin  and  Milan 
Decrees  from  November,  1810.  Mr.  Barlow,  the  American  min- 
ister, in  reporting  the  interview  to  Washington,  says  Bassano 
"showed  a  singular  reluctance"  to  answering  his  demand,  "but 
when  he  produced  the  decree  of  1811,  I  made  no  comment  on 
the  strange  manner  in  which  it  had  been  so  long  concealed  from 
me.  ...  I  only  asked  him  if  the  decree  had  been  pub- 
lished. He  said  no;  but  declared  it  had  been  communicated" 
to  the  preceding  American  minister  and  to  the  French  minister 
in  Washington.  Both  of  these  officials  denied  that  they  had 
ever  received  it. 

The  circumstances  attending  the  production  of  the  belated 
decree  brought  it  at  once  under  suspicion,  and  the  continued 
reprisals  on  American  commerce  proved  its  nullity;  but  Presi- 
dent Madison  chose  to  accept  its  authenticity.  He  had  in  his 
annual  message  of  1810  announced  the  repeal  of  the  Berlin  and 
Milan  Decrees,  he  repeated  it  in  his  annual  message  of  1811,  and 
reiterated  it  in  his  war  message  of  June  i,  1812.  It  will  be  shown 
later  in  this  paper  that  the  war  was  declared  upon  the  assumption 
that  the  French  decrees  had  been  repealed  and  that  Great  Brit- 
ain refused  to  repeal  the  Orders  in  Council.  But  it  was  manifest 
to  the  world  that  such  was  an  erroneous  assumption.  The  op- 
ponents of  the  war  in  the  United  States  openly  proclaimed  it. 
Castlereagh,  the  British  foreign  secretary,  declared  that  "the 


52  JUDICIAL  SETTLEMENT 

decree  was  a  trick  disgraceful  to  any  civilized  nation."  Adams 
records  the  public  sentiment  of  the  day  when  he  says :  "President 
Madison  had  repeated,  until  the  world  laughed  in  his  face,  that 
Napoleon  no  longer  enforced  his  decrees." 

The  archives  of  the  three  governments  now  open  to  the  pub- 
lic make  it  plain  that  the  document  produced  by  Bassano  was 
fraudulent.  Such  is  the  verdict  of  the  later  historians.  Adams 
characterizes  it  as  "a  flagrant  falsehood."  Mahan  terms  it  "the 
spurious  French  decree,"  "a  French  deception,  on  its  face  so 
obvious  as  to  deprive  mistake  of  the  excuse  of  plausibility."  Re- 
cent investigation  shows  that  while  the  President  was  assuring 
Congress  of  the  repeal  of  the  French  decrees,  he  was  talking  hi  a 
different  tone  to  the  French  minister  in  Washington.  At  his  New 
Year's  reception  of  1812  the  minister  reports  he  manifested  a 
loss  of  patience  and  referred  to  the  distressing  news  from  Europe 
of  the  American  ships  burned  and  others  captured  and  con- 
demned by  France.  "Such  proceedings,"  he  said,  "were  in  his 
eyes  as  pronounced  as  were  those  of  England,  against  whom 
the  Republic  was  at  that  moment  taking  up  arms. ' ' 

Secretary  Monroe's  interviews  with  the  French  minister  man- 
ifestly revealed  the  feeling  in  the  government.  In  March,  1812, 
in  remonstrating  with  the  French  minister  that  while  the  govern- 
ment was  preparing  for  war  with  England  the  conduct  of  France 
was  creating  embarassment  for  it  with  Congress  through  the 
continuous  seizure  of  American  vessels,  he  impetuously  asked 
the  minister,  "If  your  decrees  are  in  fact  repealed,  why  this  se- 
questration?" Later  in  the  same  month  the  minister  reports  that 
Monroe,  greatly  agitated  and  in  a  vehemence  of  reproach,  broke 
out:  "Well,  sir,  it  is  then  decided  that  we  are  to  receive  nothing 
but  outrages  from  France!  And  at  what  a  moment  too!  At 
the  very  instant  that  we  are  going  to  war  with  her  enemies."  A 
month  passed  and  the  situation  with  France  seemed  to  grow  worse 
in  Mr.  Monroe's  eyes.  He  told  the  minister  that  the  further 
seizures  had  produced  a  deep  impression  hi  Congress  and  "seemed 


FOSTER  53 

manifest  proof  that  the  Imperial  Decrees  are  not  withdrawn; 
.  .  .  that  the  Executive,  by  inclination  as  much  as  system, 
had  always  wished  to  believe  in  their  repeal,  without  which  it 
was  impossible  to  make  issue  with  England."  Even  after  the  war 
message  had  been  sent  to  Congress  and  that  body  had  decided 
on  hostilities,  Monroe,  the  minister  reports  to  his  government, 
"renewed  his  complaints  .  .  .  these  eternal  grumblings," 
declaring  that  the  Administration  had  for  eighteen  months  with 
constancy  and  firmness  maintained  the  repeal  of  the  French 
decrees,  notwithstanding  the  contrary  conduct  of  France;  and  the 
minister  added  that  he  said  "with  a  sort  of  political  coquetry, 
that  he  was  among  his  friends  obliged  to  admit  that  they  had 
been  too  weak  toward  France,  and  that  perhaps  they  had  been 
too  quick  in  regard  to  England." 

Mr.  Adams  concludes  his  review  of  this  phase  of  the  contro- 
versy as  follows:  "No  enemy  could  have  devised  a  worse  issue 
than  that  on  which  the  President  placed  the  war  with  England. 
Every  act  of  Congress  and  every  official  expression  of  Madison's 
policy  had  been  founded  on  the  withdrawal  of  the  French  Decrees 
as  they  affected  American  commerce.  This  withdrawal  could  no 
longer  be  maintained,  and  Madison  merely  shook  confidence  in 
his  own  good  faith  by  asserting  it."  Admiral  Mahan's  comment  is 
that  the  government  was  precipitated  "into  a  step  for  which,  on 
the  grounds  taken  no  justification  existed"  and  that  it  "had  been 
dragged  at  the  wheels  of  Napoleon's  chariot,  in  a  constant  dust 
of  mystification,  until  he  had  finally  achieved  the  end  of  his  schem- 
ing and  landed  it  in  a  war  for  which  it  was  utterly  unprepared." 
Woodrow  Wilson  says:  "Napoleon  was  the  enemy  of  the  civilized 
world,  had  been  America's  enemy  in  disguise,  and  had  thrown  off 
the  disguise.  England  was  fighting  him  almost  alone,  all  Europe 
thrown  into  the  scale ;  .  .  .  and  now  America  had  joined  the 
forces  of  Napoleon,  in  fact  If  not  in  intention,  as  he  had  subtilely 
planned."  "No  one,"  says  Adams,  "could  explain  the  reasoning 


54  JUDICIAL  SETTLEMENT 

which  led  to  a  war  with  England,  on  the  ground  selected  by  Madi- 
son, without  a  simultaneous  declaration  against  France."9 

5.  The  issue  upon  which  the  War  of  1812  was  declared  was 
changed  after  hostilities  were  begun. 

It  is  plain  from  the  official  and  historical  citations  already  made 
that  war  was  declared  upon  the  ground  that  the  British  Orders  in 
Council  were  still  maintained  after  the  alleged  repeal  of  the  Napo- 
leonic decrees.  It  is  also  manifest  that  had  the  British  govern- 
ment yielded  on  this  single  point,  all  other  matters  of  difference 
would  have  been  adjusted  without  war.  It  has  been  shown  that 
the  discussion  in  Parliament  and  the  state  of  affairs  in  England 
made  it  apparent  that  the  ministry  would  finally  yield;  and  as  a 
matter  of  fact  Parliament  voted  the  repeal  of  the  Orders  in  Coun- 
cil on  June  17,  one  day  before  the  declaration  of  war  was  made. 
This  surrender  of  the  British  government,  however,  had  no  influ- 
ence on  Congress.  As  Goldwin  Smith  graphically  describes  the 
situation,  "the  fingers  of  the  Kentuckian  were  twined  in  the  locks 
of  hated  England  and  would  not  let  go  because  the  special  ground 
of  quarrel  happened  to  be  withdrawn."  The  impressment  of  sea- 
men was  deemed  a  sufficient  cause  for  continuing  hostilities,  and, 
with  the  battle  cry  of  "Sailors'  Rights,"  the  war  went  on. 

A  few  historical  citations  will  sustain  the  foregoing  statement. 
Late  in  1808  a  new  British  minister  arrived  in  Washington,  a 
Liberal  in  politics,  half  American  by  marriage,  and  very  anxious 
to  signalize  his  mission  by  an  adjustment  of  the  differences  be- 
tween the  two  countries.  In  1809  he  informed  the  American 
Secretary  of  State  that  he  was  authorized  to  withdraw  the  Orders 
in  Council,  on  condition  that  the  American  non-intercourse  act  was 
likewise  withdrawn.  The  proposition  was  accepted  with  alacrity. 
No  inquiry  was  made  as  to  the  minister's  powers,  notwithstanding 
the  French  minister's  warning.  Adams  thus  describes  the  effect: 

'3,  American  State  Papers,  Foreign  Relations,  602,  609,  614;  i,  Presidents'  Messages,  482, 
491?  505;  i,  Mohan's  Sea  Power,  270,  272,  278;  6,  Adams'  History,  184,  187,  189,  195,  196, 
200,  217,  231,  232,  256,  282,  285;  3,  Woodrow  Wilson's  History,  216. 


FOSTER  55 

"The  United  States  heard  with  delight  that  friendship  with  Eng- 
land had  been  restored.  Amid  an  outburst  of  joy  commerce 
resumed  its  old  paths.  .  .  .  No  complaints  were  heard;  not 
a  voice  was  raised  about  impressments;  no  regret  was  expressed 
that  war  with  France  must  follow  reconciliation  with  England." 
The  President  convoked  Congress  in  special  session  and  communi- 
cated the  adjustment  to  that  body  with  a  high  spirit  of  satisfaction. 
Congress  cheerfully  enacted  the  legislation  necessary  to  carry 
the  adjustment  into  effect.  The  historian's  record  is:  "Little 
was  said  and  nothing  done  about  impressments."  In  a  few  weeks 
it  became  known  that  the  minister  had  acted  without  authority, 
his  conduct  was  repudiated  in  London,  and  he  was  recalled.  The 
incident,  however,  showed  that  the  Orders  in  Council  were  re- 
garded as  the  sole  obstacle  to  friendly  relations. 

The  British  minister  up  to  the  opening  of  hostilities  wrote  his 
home  government  of  the  attitude  of  Secretary  Monroe,  as  dis- 
posed to  settle  "every  other  difference  in  the  most  amicable  man- 
ner, provided  his  Majesty's  Orders  in  Council  are  revoked";  and 
at  no  time  "did  he  or  the  President  inform  the  British  govern- 
ment that  any  other  cause  of  war  existed."  Adams,  in  reciting 
the  President's  persistent  statement  that  the  French  decrees  had 
been  repealed,  and  that  war  must  follow  the  failure  of  Great  Brit- 
tain  to  withdraw  the  Orders  hi  Council,  states  that  during  the  ne- 
gotiations "he  never  suggested  that  America  would  fight  for  her 
sailors.  When  he  and  his  supporters  hi  earnest  took  up  the  griev- 
ances of  the  seamen,  they  seemed  to  do  so  as  an  afterthought." 
And  the  historian  asserts  that  "at  the  last  moment  the  dispute 
seemed  to  narrow  itself  to  the  single  point  of  belligerent  right  to 
blockade  a  coast."  Woodrow  Wilson  states  that  "Mr.  Jefferson 
had  let  impressment  go  almost  without  protest.  It  was  now 
clearly  an  afterthought  as  a  ground  for  war."  The  action  of 
Parliament  came  at  last,  "  and  the  cause  of  war  was  taken  away 
on  the  very  eve  of  its  outbreak. '  '10 

I0i,  Mahan's  Sea,  Power,  218;  Adams'  History,  V,  74,  80;  VI,  43, 117,  221;  i ,  Presidents' 
Messages,  468;  3  Wilson's  History,  214. 


56  JUDICIAL   SETTLEMENT 

The  foregoing  review  of  affairs  preceding  and  attending  the 
outbreak  of  hostilities  in  1812  must  satisfy  the  thoughtful  states- 
man and  enlightened  patriot  that  the  differences  with  Great  Brit- 
ain might  with  honor  have  been  decided  without  recourse  to  war. 
This  will,  I  think,  become  still  more  apparent  when  we  come  to 
examine  the  questions  of  international  law  involved  in  the  con- 
troversy. These  were  of  two  kinds. 

a.  The  blockades  and  the  consequent  restraint  of  neutral 
commerce  on  the  high  seas  which,  as  we  have  seen,  brought  about 
the  declaration  of  war  against  Great  Britain.  These  blockades 
were  the  result  of  the  life-and-death  struggle  between  Great 
Britain  and  the  Continental  powers  under  the  domination  of 
Napoleon.  They  were  largely  what  are  known  as  "paper  block- 
ades," but  so  far  as  the  controversy  between  the  United  States 
and  Great  Britain  was  concerned,  it  resolved  itself  into  a  question 
of  the  sufficiency  of  the  force  employed  in  the  maintenance  of  the 
blockade.  International  law  has  in  the  past  century  made  marked 
changes  in  the  principles  governing  blockade.  The  Declaration 
of  Paris  of  1856  was  the  most  notable,  but  further  definitions 
were  agreed  upon  by  the  Hague  Peace  Conferences,  and  only  last 
year  in  the  Conference  of  London  still  further  codification  of 
international  law  on  the  subject  was  made  by  the  maritime  powers. 
But  in  1812  the  law  of  blockade  was  sufficiently  established  by 
text  writers  and  jurists  to  have  enabled  these  two  nations,  with 
a  common  basis  of  jurisprudence,  to  have  submitted  their  respect- 
ive claims  under  international  law  to  the  adjudication  of  an  inter- 
national court  of  arbitration.  That  great  jurist,  Lord  Stowell, 
(Sir  William  Scott)  justly  described  by  his  biographer  as  "  one  of 
the  ablest  and  most  accomplished  of  English  judges,  especially 
in  international  law,"  was  during  the  whole  period  of  this  contro- 
versy sitting  in  the  High  Court  of  Admiralty  and  passing  judg- 
ment upon  the  American  prize  cases.  Of  his  decisions  Mr. 
Justice  Story  wrote:  "They  ought  to  be  the  basis  of  the  mari- 
time law  of  every  civilized  country  of  the  world."  An  examina- 


FOSTER  57 

tion  of  the  historical  authorities  will  make  it  clear  that  judicial 
arbitration  was  a  perfectly  practical  method  of  adjusting  this 
dispute  as  to  international  law. 

Admiral  Mahan,  who  discusses  the  question  at  length,  states 
that  "  there  was  no  difference  between  the  two  governments  as  to 
the  general  principle  that  a  blockade,  to  be  lawful,  must  be  sup- 
ported by  an  adequate  force.  The  difficulty  turned  on  a  point  of 
definition  as  to  what  situation,  and  what  size  of  a  blockading  divis- 
ion, constituted  adequacy."  The  British,  for  instance,  contended 
that  they  might  so  dispose  their  naval  vessels  about  the  Straits 
of  Dover,  the  Elbe,  etc.,  as  to  make  an  effectual  blockade,  danger- 
ous to  neutral  vessels  seeking  entrance  to  ports  on  the  blockaded 
coasts.  Mahan  says :  "  There  can  be  no  doubt  that  it  was  within 
the  power  of  Great  Britain  to  establish  such  a  blockade  within 
the  requirements  of  international  law.  Whether  she  did  so  was 
a  question  of  fact,  on  which  both  sides  were  equally  positive." 
Henry  Adams  asserts  that  "at  the  last  moment  the  dispute 
seemed  to  narrow  itself  to  the  single  point  of  belligerent  right  to 
blockade  a  coast." 

We  shall  see  when  we  come  to  examine  the  question  of  impress- 
ment, that  the  United  States  assumed  a  position  more  than  fifty 
years  in  advance  of  international  law.  Its  early  declaration  on 
the  subject  of  blockade  was  not  merely  in  advance  of  the  age,  but 
one  which  could  not  be  justified  in  reason.  No  less  a  personage 
than  John  Marshall,  when  Secretary  of  State  in  1800,  wrote  to  our 
minister  in  London:  "On  principle  it  might  be  well  questioned 
whether  this  rule  [of  blockade]  can  be  applied  to  a  place  not  com- 
pletely invested,  by  land  as  well  as  by  sea.  It  will  be  difficult 
to  resist  the  conviction  that  its  extension  to  towns  invested  by  sea 
only  is  an  unjustifiable  encroachment  on  the  rights  of  neutrals." 
Ten  years  later  the  letter  from  which  this  extract  was  taken  was 
sent  by  our  Secretary  of  State  to  Mr.  Pinkney  in  London,  among 
other  statements  of  the  position  of  the  United  States  on  the  sub- 
ject of  blockades,  and  was  by  him  submitted  to  the  British  govern- 


58  JUDICIAL   SETTLEMENT 

ment;  but  he  added  that  while  such  a  rule  might  be  contended  for 
he  did  not  ask  for  its  recognition.  It  was  to  take  its  place  with 
the  position  of  Mr.  Jefferson  that  the  Gulf  Stream  should  mark 
the  limit  of  the  territorial  waters  of  the  United  States,  as  among 
the  unrealizable  dreams  of  American  infancy. 

But  the  extreme  views  of  the  young  American  nation  could  not 
fail  to  unfavorably  impress  the  British  government,  especially 
when  it  felt  that  the  influence  of  this  nation  was  being  thrown 
on  the  side  of  Napoleon.  The  bearing  of  the  successive  British 
ministries  towards  the  United  States  at  this  period  is  thus  de- 
scribed by  Mahan:  "It  was  usually  uncompromising,  often  ar- 
rogant, sometimes  insolent,  hard  even  now  to  read  with  compo- 
posure;  but  in  the  immediate  danger  of  their  country,  during  a 
period  of  complicated  emergencies,  they  held,  with  cool  heads, 
and  with  steady  hands  on  the  helm,  a  course  taken  in  full  under- 
standing of  world  conditions,  and  with  a  substantially  just  fore- 
cast of  the  future."11 

b.  The  impressment  of  seamen  did  not  bring  on  the  hostilities 
with  Great  Britain,  but  its  abolition  became  the  avowed  object 
of  the  war  after  the  British  government  had  yielded  on  the 
question  of  blockade.  It  had  long  been  the  practice  of  the  naval 
vessels  of  the  European  powers,  especially  in  time  of  war,  to 
visit  and  search  neutral  vessels  and  to  take  from  them  such  sea- 
men as  were  decided  by  the  search  officers  to  be  subjects  of  such 
powers,  whether  the  vessels  were  in  port  or  on  the  -high  seas. 
From  a  report  sent  to  Congress  in  1803  it  appears  that  such 
visits  and  impressments  had  been  made  from  American  vessels 
during  1802  by  England,  France,  and  allies  of  France. 

For  many  generations  the  British  government  had  been  accus- 
tomed largely  to  recruit  the  seamen  for  its  navy  by  "press-gangs," 
who  would  scour  British  ports  and  force  the  seamen  into  service. 

u  Hall's  International  Law,  6th  Ed.,  p.  636;  Encyclopaedia  Brilannica,  Stowell;  i,  Mahan's 
Sa  Power,  no,  in,  112,  120, 140,  146;  6,  Adams'  History,  221;  2,  Am.  State  Papers,  For. 
Rel.,  488,  3  ib.  400. 


FOSTER  59 

During  the  wars  with  Napoleon  it  was  the  practice  of  British 
seamen,  both  in  the  navy  and  out  of  it,  to  escape  military  duty  by 
taking  service  in  the  American  merchant  marine.  Thereupon 
the  British  government  put  into  operation  the  practice  of  visit 
and  search  of  American  vessels,  and  tookkherefrom  large  numbers 
of  seamen  and  impressed  them  into  the  naval  service.  In  this 
summary  procedure  a  considerable  number  of  native  Americans 
were  impressed.  This  naturally  brought  forth  strong  protests 
from  the  American  government.  The  answer  of  the  British 
government  was  that  it  was  not  its  intention  to  molest  American 
seamen,  and  that  it  would  release  all  such  men  when  the  fact  was 
established;  but  that  in  most  instances  it  found  British  subjects 
on  American  vessels  possessed  of  papers  of  naturalization  or 
fraudulent  protection  papers,  and  that  under  such  circumstances 
it  was  natural  that  mistakes  should  be  made. 

The  protest  of  the  American  government  was,  first  against 
the  practice  of  visit  and  search  of  American  vessels  on  the  high 
sea,  as  the  flag  should  protect  all  on  board;  and,  second,  that 
persons  naturalized  or  protected  by  official  documents  were 
exempt  from  arrest.  The  first  ground  of  protest  was  then  a 
debatable  question  in  international  law,  was  stoutly  resisted  by 
Great  Britian  for  many  years  after  that  war,  and  was  not  finally 
accepted  by  that  government  until  1860.  Naturalization  was  a 
new  feature  in  the  practice  of  nations  introduced  by  the  young 
American  republic.  At  the  beginning  of  the  nineteenth  cen- 
tury the  doctrine  of  inalienability  of  national  allegiance  was  rig- 
idly enforced  by  the  European  governments.  Even  in  the  United 
States  there  was  a  diversity  of  action  between  the  legislative  and 
executive  departments  on  the  one  hand  and  the  judicial  on  the 
other.  So  far  as  naturalization  and  protection  papers  were  con- 
cerned, it  was  manifest  that  unblushing  frauds  were  openly  com- 
mitted, and  that  with  the  connivance  of  American  local  officials. 

It  would  seem  that  under  the  circumstances  it  was  a  proper 
subject  to  submit  to  arbitration  whether  the  claim  of  the  United 


60  JUDICIAL  SETTLEMENT 

States  was  justified  by  international  law  and  the  comity  of 
nations.  While  there  is  no  doubt  that  the  British  impressment 
had  inflicted  great  hardship  on  bona  fide  American  citizens,  it 
has  been  shown  that  the  controversy  never  reached  such  a  point 
that  our  government  was  ready  to  make  it  a  cause  of  war.  I 
invite  attention  to  the  authorities  which  sustain  the  foregoing 
statements. 

Hall,  in  his  International  Law,  states  the  English  practice  at 
the  beginning  of  the  nineteenth  century  to  be  that  if  a  foreign 
naturalized  Englishman  "was  met  on  the  high  seas  in  a  foreign 
merchant  ship  he  could  be  taken  out  of  it,  the  territoriality  of 
such  ships  not  being  recognized  by  English  law."  The  practice 
then  in  force  as  stated  by  Canning,  foreign  secretary,  to  the  Amer- 
ican negotiators  was  that  "when  mariners,  subjects  of  his  Ma- 
jesty, are  employed  hi  the  private  service  of  foreigners,  . 
those  subjects  may  be  taken  at  sea  out  of  the  service  of  such 
foreign  individuals  and  recalled  to  that  paramount  duty,  which 
they  owe  their  sovereign  and  then-  country.  .  .  .  It  is 
needless  to  repeat  that  these  rights  existed  hi  their  fullest  force 
for  ages  previous  to  the  establishment  of  the  United  States  of 
America;  and  it  would  be  difficult  to  contend  that  the  recognition 
of  that  independence  can  have  operated  any  change  in  this  re- 
spect." 

Hall  states  that  "in  the  beginning  of  the  present  nineteenth 
century  the  doctrine  of  the  inalienability  of  national  allegiance 
was  rigidly  enforced."  Adams  says:  "The  law  of  England,  as  de- 
clared from  time  out  of  mind  by  every  generation  of  her  judges, 
held  that  allegiance  of  a  subject  was  indefeasible,  and  therefore 
that  naturalization  was  worthless."  In  the  United  States  there 
was  a  conflict  of  opinion  and  practice  on  the  subject.  As  early  as 
1802  Congress  passed  an  act  for  the  naturalization  of  foreigners, 
and  the  executive  department  held  that  such  naturalization  con- 
ferred the  full  rights  and  protection  of  citizenship;  but  no  act 
to  that  effect  was  passed  till  1868.  On  the  other  hand  the  Su- 


FOSTER  6l 

preme  Court  and  the  American  text  writers  followed  the  British 
rule.  Chief  Justice  Ellsworth  so  ruled  in  1799,  and  Justice  Story, 
as  late  as  1830,  in  delivering  the  opinion  of  the  Court,  held,"  the 
general  doctrine  is,  that  no  persons  can  by  any  act  of  their  own> 
without  the  consent  of  the  government,  put  off  their  allegiance, 
and  become  aliens."  Chancellor  Kent,  in  his  Commentaries  on 
American  Law,  first  published  in  1826,  writes:  "A  citizen  can- 
not renounce  his  allegiance  to  the  United  States  without  the 
permission  of  the  government,  to  be  declared  by  law."  It  was 
not  until  1870  that  the  British  government  yielded  the  validity 
of  naturalization,  and  it  finally  became  recognized  by  European 
nations. 

The  right  of  visitation  and  search  was  resisted  by  the  United 
States  very  soon  after  the  constitutional  organization  of  its 
government.  In  1792  Secretary  Jefferson  instructed  our  minister 
in  Paris  as  to  the  position  of  the  United  States:  "The  simplest 
rule  will  be  that  the  vessel  being  American  shall  be  evidence  that 
the  seamen  on  board  of  her  are  such,"  and  this  doctrine  became 
the  basis  of  the  American  contention  for  more  than  sixty  years. 
When  advanced  later  by  Secretary  Madison,  the  British  secre- 
tary for  foreign  affairs  in  an  instruction  to  his  minister  in  Wash- 
ington, wrote:  "The  pretension  advanced  by  Mr.  Madison  that 
the  American  flag  should  protect  every  individual  sailing  under 
it  on  board  of  a  merchant-ship  is  too  extravagant  to  require  any 
serious  refutation.  In  the  exercise  of  a  right,  which  has  been 
asserted  by  his  Majesty  and  his  predecessors  for  ages;  .  .  . 
irregularities  must  undoubtedly  frequently  occur";  but  he  gave 
assurance  that  they  would  be  prevented  and  repressed  as  far  as 
possible. 

The  question  was  not  settled  by  the  War  of  1812,  and  the 
American  government  continued  to  press  for  its  adjustment. 
In  the  Webster-Ashburton  negotiations  of  1842,  Mr.  Webster 
sought  to  have  it  considered,  but  Lord  Ashburton  "put  it  aside 
as  touching  a  principle  which  could  not  be  subjected  to  discus- 


62  JUDICIAL   SETTLEMENT 

sion."  Mr.  Webster  when  criticised  for  not  effecting  a  settle- 
ment, replied  that  his  assertion  to  Ashburton  must  stand,  to  wit, 
that  in  every  "American  vessel  the  crew  who  navigate  it  will 
find  their  protection  in  the  flag  which  is  over  them."  But  it  was 
not  until  1860  that  the  President  was  able  to  inform  Congress 
that  Great  Britain  had  finally  abandoned  its  claim  of  visitation 
and  search. 

The  American  government  was  greatly  embarrassed  in  secur- 
ing recognition  of  its  claim  of  exemption  from  impressment  dur- 
ing the  period  preceding  the  War  of  1812  by  the  wholesale  frauds 
which  were  practiced  as  to  naturalization  and  papers  of  protec- 
tion. Adams  records  that  "the  captain  of  any  British  frigate 
which  might  happen  to  run  into  the  harbor  of  New  York,  if  he 
went  ashore,  was  likely  to  meet  on  his  return  to  the  wharf  some 
of  his  boat's  crew  strolling  about  the  town,  every  man  supplied 
with  papers  of  American  citizenship.  .  .  .  No  pretense 
was  made  of  concealing  the  fraud,  but  these  [papers]  were  issued 
in  any  quantity,  and  were  transferred  for  a  few  dollars  from 
hand  to  hand."  Mahan  cites  the  case  of  a  retired  American 
seaman  of  a  North  Carolina  port,  who  stated  that  "it  was  an 
ordinary  mode  of  procuring  a  little  spending  money  to  get  a  pro- 
tection from  a  notary  for  a  dollar,  and  sell  it  to  the  first  foreigner 
whom  it  at  all  fitted  for  fifteen  or  twenty."  He  also  quotes  the 
report  of  a  British  admiral  in  which  he  wrote:  "I  have  known 
more  than  one  American  master  carry  off  soldiers  in  their  regi- 
mentals, arms,  and  accoutrements,  from  the  garrison  of  Gibraltar; 
and  there  cannot  be  a  doubt  but  the  American  trade  is  navigated 
by  a  majority  of  British  subjects." 

Woodrow  Wilson  finds  that  nearly  every  year  from  1804  up 
to  the  embargo,  owing  to  the  flourishing  American  trade,  "four 
thousand  two  hundred  additional  men  were  needed  yearly  to 
put  crews  into  the  new  crafts,  and  it  was  estimated  that  twenty- 
five  hundred  of  the  new  men  were  in  fact  British  subjects,  no 
small  proportion  of  them  unquestionably  deserters  from  his 


FOSTER  63 

Majesty's  navy."  Adams'  comment  on  the  unwillingness  of  the 
American  government  to  strictly  observe  its  neutral  obligations 
was  that  it  preferred  to  risk  whatever  England  might  do  rather 
than  discourage  desertion,  or  enact  and  enforce  a  strict  naturali- 
zation law  or  punish  fraud.  The  national  government  was  too 
weak  to  compel  the  States  to  respect  neutral  obligations,  even  if 
it  had  been  disposed  to  make  the  attempt."  Under  such  cir- 
cumstances, it  could  hardly  be  expected  that  the  British  govern- 
ment need  favorably  consider  a  contention  which  was  contrary 
to  its  immemorable  practice  and  which  stood  hi  the  way  of  suc- 
cess against  a  powerful  enemy  with  which  it  was  engaged  in  a  ter- 
rible conflict.12 

Admiral  Mahan  and  Henry  Adams,  whose  works  I  have  most 
frequently  cited,  justify  the  War  of  1812,  as  warranted  by  the 
arbitrary  conduct  of  Great  Britain;  but  they  both  show  that 
the  controversy  was  open  to  diplomatic  settlement,  and  that  the 
war  might  have  been  avoided  with  honor. 

From  the  standpoint  of  international  law  the  situation  on  the 
eve  of  the  War  of  1812  was  very  similar  to  that  which  followed 
the  close  of  the  Civil  War  and  before  the  Geneva  arbitration. 
In  the  first  instance  American  commerce  had  been  greatly  ha- 
rassed and  injured  through  the  violation  by  Great  Britain  of  neu- 
tral rights;  in  the  other,  the  American  commerce,  much  more  valu- 
able than  that  of  1812,  was  literally  swept  from  the  seas  because  of 
the  neglect  by  Great  Britain  of  neutral  duties.  The  claim  of  the 
United  States  in  both  instances  was  in  advance  of  the  recognized 
international  law  of  the  respective  periods.  As  in  1812,  in  1865 
and  for  several  years  afterwards  the  successive  British  ministries 
denied  the  correctness  in  law  of  the  American  position  and  refused 

"Hall's  International  Law,  228, 229;  33  Victoria,  Chap.  14,  1870;  3,  American  State  Pa- 
pers, For.  Rel.,  200;  Acts  of  Congress,  April  14, 1802,  July  27,  1868;  33,  Victoria,  Chap.  14, 
1870;  Wharton'sS/ate7>ia/j,653;  Shanks  v.Dupont;  3,Peters,«242;  2,  Kent's  Commentaries 
on  American  Law,  Ed.  1854,  p.  49;  6  Writings  of  Thomas  Je/erson,  Ford,  76;  5,  Webster's 
Works,  Ed.  1851,  146;  5,  Presidents'  Messages,  507;  2,  Adams'  History,  335,  337,  423;  i, 
Mahan's  Sea  Power,  123,  124;  3,  WHson's  History,  213. 


64  JUDICIAL   SETTLEMENT 

reparation  for  losses.  But  finally  patience  won  the  day,  and  the 
Geneva  arbitration  stands  as  the  brightest  page  hi  the  history  of 
the  two  kindred  nations. 

The  war  with  Mexico  followed  immediately  after  the  annexa- 
tion of  Texas,  and  was  caused  by  the  forcible  occupation  by  the 
army  of  the  United  States  of  territory  which  was  in  dispute 
between  Mexico  and  Texas  at  the  time  of  the  annexation.  Presi- 
dent Tyler,  in  his  message  to  the  House  of  Representatives  rec- 
ommending annexation  by  joint  resolution,  recognized  that  the 
dispute  as  to  boundary  existed,  and  that  it  was  "a  question  pur- 
posely left  open  for  negotiation  with  Mexico  as  affording  the  best 
opportunity  for  the  most  friendly  and  pacific  arrangements." 

Before  the  annexation  was  consummated  the  republic  of 
Texas  had  proposed  to  Mexico  an  adjustment  of  all  differences 
between  them,  and  the  basis  of  settlement  had  been  agreed  to  by 
Mexico,  but  was  not  carried  out  because  of  the  annexation.  One 
clause  of  this  proposal  was  as  follows:  "Texas  will  be  willing  to 
submit  disputed  points  respecting  territory  and  other  matters 
to  the  arbitration  of  umpires."  This  basis  of  settlement  was 
referred  to  in  the  annual  message  of  President  Polk,  of  December, 
1845,  and  a  copy  was  annexed  for  the  information  of  Congress. 
The  first  clause  of  this  basis  of  settlement  stipulated  for  the 
recognition  by  Mexico  of  the  independence  of  Texas.  President 
Polk  stated  that  this  clause  was  binding  upon  Mexico,  but  made 
no  reference  to  the  clause  stipulating  for  the  submission  of  the 
boundary  dispute  to  arbitration.  On  the  contrary,  he  ignored 
this  clause  by  informing  Congress  that  even  before  the  annexa- 
tion had  been  perfected  he  had  ordered  the  army  of  the  United 
States  to  take  possession  of  the  territory  in  dispute.  His  language 
was:  "Our  army  was  ordered  to  take  position  in  the  country 
between  the  Nueces  and  the  Del  Norte,  and  to  repel  any  invasion 
of  the  Texan  territory  which  might  be  attempted  by  the  Mexican 
forces."  And  this  overt  act  of  aggression  naturally  brought  on 
the  war. 


FOSTER  65 

There  can  be  no  question  that  the  announcement  to  Congress 
of  President  Tyler,  already  cited,  and  the  agreement  between 
Texas  and  Mexico,  committed  our  government  to  a  peaceful 
adjustment  of  the  boundary  question,  and  that  the  precipitate 
dispatch  of  the  army  under  General  Taylor  to  the  Rio  Grande 
was  a  breach  of  good  faith  and  comity.  Our  government  was  not 
only  committed  to  the  agreement  to  submit  the  question  of  dis- 
puted territory  and  boundary  to  arbitration,  but  it  was  an 
eminently  fit  subject  for  such  submission,  and  the  practice  has 
repeatedly  been  followed  by  our  country  in  its  frequent  disputes 
with  Canada  respecting  boundaries.  It  is  significant  of  the  course 
which  should  have  been  taken  on  the  annexation  of  Texas,  that 
at  this  very  moment  the  United  States  and  Mexico  are  engaged 
in  an  arbitration  respecting  a  very  valuable  tract  of  territory 
on  the  upper  Rio  Grande. 

In  his  Memoirs  forty  years  after  the  events,  General  U.  S. 
Grant  wrote :  "To  this  day  I  regard  the  war  [which  resulted  from 
the  annexation  of  Texas]  as  one  of  the  most  unjust  ever  waged 
by  a  stronger  against  a  weaker  nation.  It  was  an  instance  of  a 
republic  following  the  bad  example  of  European  monarchies,  in 
not  considering  justice  in  their  desire  to  acquire  additional  terri- 
tory." This  is  the  judgment  also  of  historians,  almost  without 
exception,  who  have  written  a  generation  or  more  after  the  war. 
Rhodes  says:  "Open  hostilities  would  have  been  avoided  had 
the  conduct  of  the  administration  been  honorable.  Such  was  the 
opinion  of  Webster,  Clay,  Calhoun,  Benton  and  Tyler  . 
Negotiations  in  the  same  spirit  as  that  had  with  Great  Britain 
would  undoubtedly  have  settled  the  difficulty,  but  the  President 
arrogated  the  right  of  deciding  the  question.  Mexico  was 
actually  goaded  on  to  the  war."  Schouler's  judgment  is:  "To 
provoke  this  feeble  sister  republic  to  hostilities,  at  the  same 
time  putting  on  her  the  offense  of  shedding  the  first  blood,  was 
the  step  predetermined  if  she  would  not  sign  away  her  domains 
for  gold.  This  was  the  program:  to  let  loose  the  demon  of 


66  JUDICIAL   SETTLEMENT 

war,  and  under  the  smoke  of  defending  the  fourth  part  of  Mexico 
we  had  just  snatched  from  her  to  despoil  her  of  another.  The 
program  succeeded,  but  the  dark  catastrophe  locked  up  in  our 
bloody  acquisitions  was  hidden  for  many  years."12 

President  Taf  t  has  recently  announced  in  a  public  address  in 
my  hearing  that  the  Spanish  War  was  an  altruistic  war.  It  must 
have  been  such,  for  only  on  that  ground  can  it  be  properly  justi- 
fied. I  am  not  prepared  to  assert  that  altruism  is  a  fit  subject 
for  arbitration.  Such  a  claim  as  that  made  by  the  President 
might  raise  the  query  how  far  altruism  justifies  armed  force  to 
overthrow  the  sovereignty  of  a  sister  state,  or  what  portion  of 
"the  white  man's  burden"  has  been  allotted  to  the  United  States; 
but  that  inquiry  would  be  foreign  to  the  present  discussion. 

It  is,  however,  generally  accepted  that  the  explosion  of  the 
Maine  hastened,  if  it  did  not  make  the  war  inevitable.  One  of 
the  most  intelligent  of  the  writers  on  the  Spanish  War  declares, 
that  just  such  events  "render  diplomacy  impotent,"  and  our 
minister  in  Madrid,  General  Woodf  ord,  gives  it  that  grave  impor- 
tance. It  unquestionably  was  an  event  which  justified  an  im- 
partial international  investigation.  Our  government  did  not 
accept  this  step  proposed  by  Spain  and  refused  to  allow  a  joint 
investigation  by  American  and  Spanish  experts.  Only  a  year 
later  at  The  Hague  the  United  States  joined  with  the  other  powers 
of  the  world  in  an  arbitration  treaty  *which  provided  for  an 
international  commission  of  inquiry  for  just  such  cases;  and  soon 
thereafter  we  saw  its  great  fitness  and  utility  in  the  Dogger  Bank 
Commission  of  Great  Britain  and  Russia.  Such  a  court  of  in- 
quiry as  to  the  Maine  would  have  given  time  for  diplomacy  and 
the  allaying  of  the  war  fever  in  our  country  and  in  Congress. 

"4,  President's  Messages,  324, 389;  Senate  Doc.  No.  i,  2gth  Congress,  ist  Session,  p.  88; 
i,  Personal  Memoirs  of  U.  S.  Grant,  53;  i,  Rhodes'  History  of  the  United  States,  87,  4, 
Schouler's  History,  525;  4,  Woodrow  Wilson's  History,  122;  Schurz's  Life  of  Clay,  288; 
Hart,  Foundations  of  American  Foreign  Policy,  72.  For  opposite  view,  The  Justice  of 
the  Mexican  War,  by  A.  B.  Owen,  Ed.  1908. 


FOSTER  67 

It  is  well  known  that  President  McKinley  was  strongly  opposed 
to  the  war,  and  he  was  ably  supported  hi  striving  for  peace  by 
General  Woodford,  to  whom  too  much  praise  cannot  be  given  for 
his  conduct  of  the  negotiations.  It  now  seems  certain  that  had 
not  the  President  yielded  to  the  war  clamor  in  the  country  and 
the  demands  of  Congress,  the  war  might  have  been  averted. 
Twelve  days  before  the  President's  fateful  message  to  Congress, 
General  Woodford  telegraphed  the  President:  "I  believe  the 
ministry  are  ready  to  go  as  far  and  as  fast  as  they  can  and  still 
save  the  dynasty  here  in  Spain.  They  know  that  Cuba  is  lost." 
Four  days  later  he  again  telegraphed:  "If  you  can  still  give 
me  time,  ...  I  will  get  for  you  the  peace  you  desire  so 
much  and  for  which  you  have  labored  so  hard."  On  the  day 
before  the  message  went  to  Congress,  Woodford  by  cable  still 
pleaded  for  more  time  for  negotiation,  assuring  the  President: 
"You  will  win  the  fight  on  your  own  lines." 

Admiral  Chadwick,  who  has  given  us  the  most  complete  work 
yet  published  on  this  war,  in  reviewing  this  phase  of  the  situation, 
writes:  "President  Grant,  facing  a  situation  of  like  character 
in  the  ten  years'  war,  had,  supported  by  Mr.  Fish,  unyieldingly 
determined  to  keep  hold  of  the  reins  of  diplomacy.  President 
Cleveland  had  been  equally  firm  in  holding  a  like  course.  Had 
either,  in  the  critical  moments  of  their  administrations,  trans- 
ferred the  Cuban  question  to  Congress,  war  would  have  been  the 
result.  This,  naturally,  was  clear  to  President  McKinley." 
In  the  light  of  the  Woodford  dispatches,  we  must  conclude  that 
had  President  McKinley  displayed  the  same  firmness  as  Grant 
and  Cleveland  and  continued  to  "keep  hold  of  the  reins  of 
diplomacy,"  the  Spanish  War,  with  its  long  train  of  consequences, 
might  never  have  come  upon  us.18 

11  a  Scott's  Hague  Peace  Conferences,  p.  87,  for  "Commissions  of  Inquiry";  Foreign  Rela- 
tions of  the  United  Stales  in  1898,  pp.  727,  732,  747;  Chadwick's  Relations  of  the  United 
States  and  Spain,  Diplomacy,  Ed.  1909,  p.  575. 


68  JUDICIAL  SETTLEMENT 

I  have  discharged,  Mr.  President,  the  duty  imposed  upon  me. 
It  is  not  a  pleasant  task  for  one  who  is  proud  of  his  country  and 
its  achievements  to  rehearse  the  dark  pages  of  its  history.  But 
we  who  are  jealous  of  its  fair  fame  should  not  shrink  from  expos- 
ing its  errors,  in  the  hope  that  its  people  and  their  rulers  may  be 
led  to  avoid  the  mistakes  of  the  past.  I  do  not  say  that  we  shall 
have  no  more  foreign  wars,  but  I  do  say  that  our  experience 
teaches  that  if  we  exercise  justice,  forbearance,  and  patience, 
and  seek  peace  through  the  methods  proposed  by  this  Society, 
an  honorable  way  may  be  found  of  adjusting  all  our  international 
differences. 

THE  PRESIDENT:  Ladies  and  Gentlemen,  Mr.  Carnegie  has 
devoted  many  years  of  his  life  to  the  creation  of  beneficent  insti- 
tutions, and  he  has  in  numerous  instances  helped  individuals  and 
individual  causes.  He  has  now,  in  his  magnificent  endowment 
for  peace,  broadened  his  purpose  and  gathered  within  the  four 
corners  of  his  generous  thought  all  men,  all  peoples,  and  the 
nations  of  the  world  will  indeed  rise  up  and  call  him  blessed. 

ADDRESS  OF  ANDREW  CARNEGIE 

Mr.  President,  Ladies  and  Gentlemen :  I  have  listened  with 
deep  interest  to  the  speeches  which  have  been  delivered  here 
to-night,  and  have  realized  more  than  ever  the  importance  of 
the  work  of  this  society.  We  must  get  a  code  of  international 
law. 

I  have  placed  within  reach  of  the  Chairman  a  fund  that  may 
be  contributory  to  the  success  of  this  great  work.  But  I  am  not 
to  speak  to  you  upon  law  to-night.  Circumstances  prevented 
me  from  following  the  law,  and  so  I  attached  myself  assiduously 
to  the  prophets.  You  have  only  to  spell  that  in  the  simplified 
spelling  which  I  have  adopted,  in  order  to  understand  my  posi- 
tion. 


CARNEGIE  69 

Ladies  and  gentlemen,  I  am  persuaded  that  costly  as  war  is — 
and  the  way  that  cost  is  increasing  is  ominous — enormous  as 
may  be  the  expenses  of  building  ships  for  war,  and  the  still  greater 
expense  of  maintaining  those  ships  when  there  is  no  war — and 
70  per  cent  of  all  your  taxation  hi  this  country  is  spent  on  war  or 
pensions  connected  with  war — I  am  persuaded  that  it  will  not  be 
from  that  great  expenditure  that  we  will  reach  the  state  which  we  are 
rapidly  approaching  and  are  bound  to  reach,  the  abolition  of  war. 
We  must  appeal  to  the  masses  upon  the  moral  issue.  The 
demagogue  knows  full  well  that  he  has  only  to  arouse  the  passions 
of  the  people  against  another  nation,  to  obtain  votes  for  enor- 
mous expenditures  for  the  so-called  honor  of  his  country.  "  Our 
country,  right  or  wrong,"  is  still  a  potent  cry,  its  honor  a  sacred 
cause,  and  well  do  the  demogogues  understand  this.  That  is 
the  kind  of  patriotism  which  Johnson  said  was  the  refuge  of 
scoundrels,  and  so  it  is  to-day  the  refuge  of  scurvy  politicians. 

We  must  look  above  the  mere  money  cost  of  war  to  effect  its 
abandonment.  As  long  as  the  yearly  increase  of  the  national 
wealth  of  the  chief  nations  of  the  world  is  so  incredibly  great, 
we  are  above  the  question  of  the  money  cost.  Great  Britain  is 
supposed  to  increase  hi  national  wealth  every  year  $4,000,000,000, 
and  you  know  what  our  own  census  tells  us  about  America.  It 
is  not  war  itself  that  is  the  most  expensive,  because  war  seldom 
happens.  It  is  the  danger  of  war  which  hangs  like  a  dark  cloud 
over  the  whole  atmosphere  of  the  world,  that  we  must  dread. 
No,  gentlemen,  means  will  always  be  forthcoming  for  war. 

The  great  crime  in  war  is  that  man  kills  man,  made  hi  the 
image  of  God,  and  we  must  bring  the  masses  up  to  that  point 
that  they  understand  that  war  is  not  simply  a  wrong,  that  it  is 
not,  as  is  often  asserted,  a  stimulating  element  for  the  vigor  of 
the  race,  but  that  it  is  the  great  crime  of  civilization,  the  killing 
of  men  by  men. 

Fortunately  no  custom  has  received  such  unstinted  denuncia- 
tion as  war.  From  ancient  times,  long  before  Christ,  it  has  been 


70  JUDICIAL  SETTLEMENT 

held  up  to  us  as  "the  foulest  fiend  ever  vomited  forth  from 
Hell,"  and  age  after  age,  words  of  similar  import  have  come  from 
the  masters  and  leaders  of  men.  Our  own  times  echo  these 
outbursts.  Washington's  first  wish  was  that  war  should  be 
abolished.  When  Grant  was  in  London  and  the  Duke  of  Cam- 
bridge offered  him  a  military  review,  his  answer  was,  "I  never 
wish  to  look  upon  a  regiment  of  soldiers  again."  Grant  was  a 
soldier  not  by  choice;  he  left  civil  life  at  the  call  of  duty  to  defend 
the  Republic.  But  the  words  of  General  Sherman  are  shortest 
and  sum  it  all  up,  "War  is  hell."  And  that  is  what  we  must 
impress  upon  people  if  we  wish  to  get  the  masses  with  us  so  en- 
thusiastically that  they  will  not  permit  it;  or  to  put  it  in  another 
form,  where  they  will  sustain  such  statesmen  as  Elihu  Root, 
or  our  present  Secretary  of  State,  who  is  doing  all  he  can  in  the 
good  cause.  These  men  will  be  sustained  whenever  you  have 
the  masses  behind  them,  believing  that  war  is  a  crime. 

It  was  the  moral  side  of  slavery,  of  men  buying  and  selling 
men  and  women,  which  finally  brought  about  its  abolition.  And 
so  I  believe  it  will  be  with  war.  When  Lincoln,  then  a  young 
man,  went  to  New  Orleans  in  a  trading  boat  on  the  Mississippi 
arid  first  witnessed  the  spectacle  of  men  and  women  bought  and 
sold,  he  said  to  his  companion  as  he  walked  away,  "If  I  ever  get  a 
chance  I  will  hit  this  accursed  thing  hard. ' '  Aroused  by  that  crime, 
he  lived  to  emancipate  the  slaves.  Would  the  world  had  another 
Lincoln  to  abolish  the  greatest  of  all  remaining  crimes! 

We  must  press  home  to  the  masses  in  civilized  lands  the  fact 
that  man,  notwithstanding  all  his  savagery  in  early  times,  has 
within  him  the  capacity  for  infinite  upward  progress.  Of  course, 
we  all  know  that  man  rose  from  the  brute.  If  man  had  been 
created  unchangeable,  our  task  would  be  hopeless  indeed;  but 
man  was  created  with  the  sublime  capacity  of  ascending,  his 
face  ever  to  the  sun,  to  higher  and  higher  attainments,  and  there 
is  no  limit  to  his  perfection,  even  on  this  earth.  Such  is  man ! 
This  is  what  will  lead  man  most  swiftly  and  more  surely  to  faith 


CARNEGIE  71 

in  a  Divine  Power,  more  swiftly  and  more  surely  than  any  other 
fact  that  history  has  to  record. 

Now,  we  must  press  home  to  the  masses  the  fact  that  man, 
notwithstanding  all  his  original  savagery,  has  constantly  been 
engaged  in  abolishing  savage  customs  connected  with  war,  one 
after  another,  for  centuries.  It  is  preposterous  for  scholars  to 
stand  up  and  preach  that  because  man  did  savage  things  when  he 
was  a  savage,  he  is  going  to  continue  war  when  he  has  become 
civilized. 

For  centuries  we  have  been  mitigating  the  horrors  of  war. 
We  no  longer  eat  our  fellows.  Men  did  that  once.  According 
to  the  theory  of  some  gentlemen,  because  we  did  it  once,  there- 
fore we  are  going  to  do  it  again.  In  other  words,  it  is  not  logical 
to  say  that  God  has  created  man  so  that  he  will  go  backward 
to  savagery,  when  all  the  evidence  of  history  is  that  from  the 
day  when  knowledge  was  first  preserved,  so  that  we  could  read 
the  record  of  the  past,  his  course  has  been  ever  upward.  Do  not 
look  to  the  past,  but  to  the  future.  There  is  the  hope  we  have 
that  man  shall  rise  to  perfection.  We  no  longer  torture  prisoners 
to  death,  or  sack  cities,  putting  the  inhabitants  to  sword  and 
flame.  Remember  that  all  these  things  were  once  hi  consonance 
with  the  rules  of  war.  The  Duke  of  Wellington  sacked  cities  in 
Spain,  but  we  have  done  away  with  all  that.  Yet  we  still  retain 
the  custom  of  killing  each  other  like  wild  beasts  in  this,  the  twen- 
tieth century  of  the  Christian  era.  It  is  a  positive  disgrace  to 
humanity  and  it  is  a  crime  against  God. 

Now,  the  Emperor  of  Germany  is  to  be  extolled  for  his  success- 
ful efforts  to  restrict  private  war  in  the  army  and  navy.  When  he 
succeeded  to  the  throne  the  average  of  fatal  duels  in  Germany 
was  1 200  a  year.  They  do  not  to-day  amount  to  twelve.  Why? 
Because  he  has  appointed  that  a  court  of  honor  shall  sit  before 
a  dangerous  duel  is  fought,  and  only  after  that  court  has  decided 
that  it  is  inevitable  can  that  duel  take  place.  He  has  arranged 
also  that  it  shall  be  fought  with  swords,  which  are  really  so 


72  JUDICIAL  SETTLEMENT 

innocent  in  the  hands  of  the  people  who  use  them  that  the  duel  is 
becoming  as  much  a  farce  in  Germany  as  it  is  in  France. 

But  that  is  not  all.  Let  me  remind  you  of  another  thing. 
The  Lutheran  Church,  the  national  church  of  Germany,  denies 
Christian  burial  to  one  killed  in  a  duel.  Here  we  see  the  religious 
or  moral  influence  doing  its  work  against  the  crime  of  killing  or 
wounding  man,  made  in  the  image  of  God. 

Reference  has  been  made  this  evening  to  the  peace  foundation 
organized  yesterday.  I  trust  and  believe,  gentlemen  of  this 
judicial  association,  you  will  not  fail  to  give  it  a  warm  welcome. 
I  am  sure  cordial  cooperation  with  you  and  with  all  other  peace 
agencies  in  every  possible  way  is  ardently  desired  by  it.  While 
it  has  its  own  spheres,  its  special  mission,  we  also  should  cooperate 
as  fellow  workers,  privileged  to  labor  in  the  grandest  of  all  causes, 
for  we  can  all  declare  with  Washington  that  our  first  wish  is 
that  war  should  be  abolished  from  the  face  of  the  earth. 

NOTE:  See  extract  in  Appendix. 


SECOND  SESSION 

FRIDAY  MORNING,  DECEMBER  16,  1910 

Theodore  Marburg,  Presiding  Officer 

After  calling  the  meeting  to  order  Mr.  Theodore  Marburg, 
Presiding  Officer  at  this  session,  said: 

Ladies  and  Gentlemen:  In  the  opinion  of  this  Society,  the 
first  essential,  if  wars  are  to  diminish  hi  number — I  will  not  say 
cease — is  that  there  should  exist  additional  institutions  which 
shall  offer  substitutes  for  war.  At  present  this  society  sees  no 
more  promising  instrument  than  a  true  international  court  of 
justice.  While  laying  our  emphasis  on  that,  I  want  to  say  that 
.we  are  alive  to  the  very  important  help  which  collateral  effort  in 
the  peace  movement  gives  to  our  own  immediate  cause.  It  is  the 
desire  of  the  body  of  men  who  are  charged  with  the  duty  of  guid- 
ing this  organization  that  we  endeavor  to  make  the  principles  of 
this  movement  so  broad  that  it  will  exclude  no  one  who  thinks 
that  there  are  means  other  than  war  by  which  disputes  can  be 
settled.  That  is  the  broadest  way  of  putting  it  that  we  know  of. 
At  the  same  tune  we  do  not  stand  for  what  certain  pacific  societies 
represent.  We  do  not  believe  that  one  nation  can  afford  to  dis- 
arm while  other  nations  remain  armed.  We  realize  how  few  are 
the  great  powers  that  have  formidable  navies  and  armies,  and 
how  reasonable  the  expectation  that  they  should  be  brought 
together  and  agree  to  stop  the  mad  race  in  armaments.  But  we 
insist  that  concerted  action  is  an  essential  element  hi  that  pro- 
gram. Furthermore,  we  do  not  share  the  view  that  we  should 
ignore  the  services  of  the  men  who  have  laid  down  then*  lives  in 
the  past  on  the  battlefield.  You  may  have  observed  that  there 

73 


74  JUDICIAL   SETTLEMENT 

is  a  movement  to  eliminate  from  our  school  books  the  mention 
of  such  men  and  their  deeds.  We  feel  that  a  profound  and  lasting 
respect  for  such  men  and  admiration  for  the  motives  which  im- 
pelled their  conduct  is  not  at  all  inconsistent  with  the  rational  en- 
deavor to  change  the  conditions  which  have  made  past  wars 
possible.  What  we  ami  to  correct  is  the  folly  which  has  suffered 
us  to  live  without  certain  simple  institutions  that  would  permit 
of  the  settlement  of  disputes  by  means  other  than  war,  the  nar- 
rowness of  otherwise  great  and  progressive  peoples  who  think  then- 
own  welfare  can  be  promoted  only  by  arresting  the  growth  of 
other  nations,  which  other  nations  may,  after  all,  be  making  con- 
tributions to  the  cause  of  progress  and  justice  equal  to  their 
own.  The  generous  mind  should  have  two  departments  of 
memory.  It  should  remember,  and  it  should  forget.  It  should 
cling  stubbornly  to  the  memory  of  helpful  action  on  the  part 
of  any  people  toward  ourselves,  whether  it  has  been  in  the  form 
of  some  overt  public  act  or  whether  it  came  through  the  constant, 
continuous  interchange  of  healthful  and  stimulating  ideas  tak- 
ing place  daily  in  the  modern  intercourse  of  the  world.  It  should 
fail  to  remember  remote  acts  of  hostility  when  the  complexion 
and  spirit  of  the  people  which  committed  them  have  wholly 
changed.  That  is  what  I  mean  when  I  say  that  we  should  remem- 
ber and  should  forget. 

The  charge  has  been  made  that  the  peace  movement  is  futile 
so  long  as  certain  policies  of  government  which  exist  to-day 
continue  to  be  pursued.  An  honored  friend  of  many  of  us  here, 
Mr.  John  Bigelow,  of  New  York,  takes  the  attitude  that  he  will 
not  join  any  society  which  has  in  view  the  substitution  of  peace- 
ful methods  for  war  so  long  as  the  present  system  of  hostile 
tariffs  obtains.  His  view  is  that  the  tariff  is  one  of  the  prime 
causes  of  war  and  that  our  efforts  are  idle  until  we  remove  the 
prime  causes.  This  opinion  is  shared  partly  by  other  writers 
and  speakers,  and  by  some  of  our  leading  newspapers.  It  needs 
to  be  considered. 


MARBURG  75 

Undoubtedly  customs  tariffs  are  an  annoyance  and  offer  a 
source  of  friction;  but  so  is  the  commercial  rivalry  of  two  given 
countries  in  the  markets  of  the  world  and  the  commercial  invasion 
of  one  country  by  another  hi  the  very  absence  of  a  tariff.  Love 
of  Germany  by  Englishmen  is  certainly  not  promoted  by  the 
degree  to  which  English  wares  are  being  supplanted  by  German 
wares  hi  the  world  at  large  and  in  the  home  market  of  free  trade 
England  itself.  In  other  words,  it  is  commercial  rivalry,  and  not 
tariffs,  which  is  the  basic  cause  of  whatever  coolness,  arising  out 
of  trade  relations,  may  exist  to-day  between  England  and  Ger- 
many. Commerce  is  based  upon  the  suppression  of  the  rival; 
the  tariff  is  only  one  of  many  instruments  employed  to  that  end. 
This  much  is  clear,  namely,  that  while  the  evil  of  unfair  discrimi- 
nation and  of  excessively  high  tariffs  may  be,  and  should  be,  dealt 
with  by  each  country  separately,  any  movement  for  free  trade 
which  hopes  to  succeed,  must,  like  the  peace  movement,  be 
world-wide.  Just  as  no  country  can  to-day  afford  to  disarm  in 
the  military  sense  while  other  countries  remain  armed,  so  no 
country  can  afford  to  disarm  in  the  commercial  sense  while  other 
countries  retain  the  protective  system.  The  men  who  inaugu- 
rated free  trade  in  England  in  the  forties  looked  forward  to  the 
tune  when  their  view  should  prevail  throughout  the  great  commer- 
cial nations.  Unfortunately  this  hope  has  not  been  realized. 

The  trend  of  events  has  been  in  exactly  the  opposite  direction 
until  to-day  England  itself  is  on  the  threshold  of  a  protective 
system.  She  has  already  moved  in  that  direction  by  providing 
that  foreign  patents  taken  out  in  England  shall  lapse  unless  a 
certain  proportion  of  the  wares  protected  by  such  patents  and 
sold  in  England,  shall  be  manufactured  on  English  soil. 

Manifestly  any  radical  change  hi  the  tariff  policy  of  the  com- 
mercial nations  practicing  protection  must  be  by  concerted  action. 
Until  this  view  prevails  small  profit  will  result  from  dragging 
the  tariff  question  into  a  discussion  of  the  problem  of  an  inter- 
national court  of  justice. 


76  JUDICIAL  SETTLEMENT 

We  have  a  quite  long  though  interesting  program  this  morning. 
The  speakers  will  limit  their  addresses  to  twenty  minutes  each. 
A  discussion  of  the  papers  is  invited  limited  to  five  minutes  for 
each  participant. 

One  thing  more.  We  have  concluded  to  limit  the  activities  of 
this  conference  to  a  full  and  free  discussion  of  the  questions  before 
us  and  to  abstain  from  passing  resolutions.  There  will  therefore 
be  no  committee  on  resolutions,  and  no  resolutions  will  be  enter- 
tained. 

The  first  speaker  on  the  program  is  a  gentleman  so  eminent  in 
this  community,  in  this  country  and  in  the  world,  that  he  needs 
no  introduction — Mr.  Justice  Henry  B.  Brown,  retired,  of  the 
Supreme  Court  of  the  United  States. 

The  subject  of  his  address  is  "Interstate  Controversies  in  the 
Supreme  Court  of  the  United  States." 

INTERSTATE    CONTROVERSIES    IN    THE    SUPREME 
COURT  OF  THE  UNITED  STATES 

HON.  HENRY  B.  BROWN,  ASSOCIATE  JUSTICE  SUPREME  COURT  OF 
THE  UNITED  STATES,  RETIRED 

It  is  scarcely  too  much  to  say  that  this  country  is  the  home  of 
modern  international  arbitration,  as  it  certainly  is  the  birthplace 
of  the  international  court.  Not  that  the  idea  of  international 
arbitration  is  a  recent  one.  Indeed,  it  has  been  the  dream  of 
political  reformers  from  the  time  the  first  glimmerings  of  Greek 
philosophy  and  civilization  began  to  dispel  the  darkness  with 
which  ancient,  and  particularly  oriental,  barbarism  had  overspread 
the  earth.  It  was  frequently  resorted  to  in  disputes  between  the 
Grecian  states,  and  was  not  unknown  even  in  Asia  Minor.  Thu- 
cydides  quotes  with  approval  a  remark  of  the  King  of  Sparta, 
that  it  is  impossible  to  take  as  a  transgressor  him  who  offers  to 
lay  his  grievance  before  a  tribunal  of  arbitration.  The  Amphic- 


BROWN  77 

tyonic  Council,  whose  functions  were  chiefly  religious,  did  some- 
thing to  mitigate  the  horrors  of  war  by  providing  that  the  cities 
of  the  League  should  not  be  burned,  destroyed,  or  deprived  of 
their  water  supply  in  time  of  war.  But  it  was  powerless  to  fore- 
stall the  outbreak  of  hostilities. 

By  the  Romans  arbitration  was  uniformly  refused.  As  Rome 
aspired  to  be  the  sovereign  of  the  world,  she  treated  other  nations 
not  as  equals,  but  rather  as  suppliants  for  her  mercy,  and  regarded 
it  as  beneath  her  dignity  to  submit  her  claims  to  the  bar  of  inter- 
national justice. 

During  the  middle  ages  and  the  preponderance  of  papal  author- 
ity, the  church  arrogated  to  itself  the  right  to  act  as  arbiter  of  all 
disputes  between  nations,  and  even  to  parcel  out  newly  discovered 
lands  and  allot  them  to  sovereigns  at  its  pleasure.  Be  it  said  to 
their  credit,  the  voice  of  the  popes  was  generally  for  peace,  and 
through  their  influence  arbitral  clauses  were  sometimes  inserted 
in  treaties  between  European  powers,  and  were  occasionally 
•Appealed  to  for  the  settlement  of  international  disputes.  But 
these  attempts  were  always  individual  and  limited  to  the  signa- 
tory powers  alone,  and  ceasing  to  be  operative  upon  the  outbreak 
of  war,  the  termination  of  the  treaty,  or  the  passing  of  the  parti- 
cular exigency. 

It  was  not  until  the  seventeenth  century, — over  two  thousand 
years  after  the  famous  remark  of  the  King  of  Sparta  quoted  by 
Thucydides, — that  the  question  of  a  general  arbitral  tribunal,  hi 
which  all  the  nations  of  the  world  should  take  part,  was  even 
broached  by  political  writers.  Curiously  enough  two  books  upon 
this  subject  appeared  almost  contemporaneously — one  by  Emeric 
CrucS,  a  French  writer,  hi  1623,  and  the  other  by  Grotius,  the 
great  Dutch  publicist,  who,  in  1625,  put  forth  his  great  work  upon 
the  law  of  war  and  peace,  which  for  nearly  three  hundred  years 
has  been  treated  as  the  foundation  of  the  modern  science  of  inter- 
national law.  In  this  he  advocated  Congresses  of  Christian 
States,  at  which  international  controversies  shall  be  decided  by 


78  JUDICIAL   SETTLEMENT 

disinterested  powers,  with  authority  to  compel  the  parties  to 
accept  peace  on  equitable  terms.  Cruce's  project  was  more  defi- 
nite. He  proposed  the  establishment  at  Venice  of  an  assembly 
of  ambassadors  of  all  the  nations  of  the  world,  oriental  as  well 
as  occidental,  who  should  settle  all  international  disputes.  Noth- 
ing, however,  came  of  these  proposals,  although  individual  cases 
between  the  powers  involving  generally  pecuniary  claims,  ques- 
tions of  boundary  and  of  the  navigation  of  internal  waters,  were 
frequently  submitted  to  disinterested  parties. 

It  is  to  the  eighteenth  and  nineteenth  centuries,  and  largely  to 
the  initiative  of  this  country  that  the  world  is  indebted  for  the 
most  important  steps  in  the  direction  of  a  general  arbitral  tribunal. 

The  creation  of  the  Supreme  Court  of  the  United  States  was 
in  itself  almost  an  epoch.  It  demonstrated  for  the  first  time  that 
a  court  may  be  established  with  power  to  adjudicate  all  claims 
between  independent  States,  and  for  this  purpose  it  possesses  all 
the  prerogatives  of  an  international  court.  In  estimating  the 
value  of  its  work,  it  must  not  be  forgotten  that  the  American  col- 
onies were  separate  and  self-governing  communities,  with  little 
more  than  a  nominal  dependence  upon  the  mother  country;  and 
that  since  the  Articles  of  Confederation,  the  States  have  contin- 
ued to  be  separate  and  independent,  with  full  rights  of  sovereignty, 
except  so  far  as  each  has  delegated  to  the  general  government 
certain  powers  essential  to  a  unified  existence.  As  early  as  1781 
and  during  the  Revolutionary  War,  it  was  held  in  Pennsylvania 
that  the  property  of  the  commonwealth  of  Virginia  was  not  liable 
to  attachment  in  Pennsylvania,  upon  the  ground  that  a  sovereign 
State  could  not  be  sued,  or  its  property  attached,  in  Pennsylvania, 
for  a  debt  due  to  one  of  its  citizens.  It  is  then  as  a  congeries  of 
independent  and  autonomous  States  that  we  are  to  consider  the 
question  of  judicial  arbitrament  of  controversies  before  them. 

The  Articles  of  Confederation  were  the  genesis  but  not  the 
foundation  of  the  present  national  government.  They  did  not 
constitute  a  government  in  the  ordinary  sense,  but  were  a  mere 


BROWN  79 

league  between  the  States  "for  their  common  defense,  the  security 
of  their  liberties  and  their  mutual  and  general  welfare."  As  little 
power  as  possible  was  given  to  the  Union;  as  much  as  possible 
was  reserved  to  the  States.  There  was,  however,  a  reservation 
to  Congress  of  "an  appeal  in  all  disputes  and  differences  between 
two  or  more  States  concerning  boundary,  jurisdiction  or  any  other 
cause  whatever" ;  and  an  elaborate  provision  made  for  the  exercise 
of  this  authority  through  commissioners  or  judges  to  be  chosen  by 
the  parties  or  appointed  by  Congress.  In  view  of  the  indefinite 
and  sometimes  conflicting  limits  of  the  early  royal  grants,  it  is 
manifest  that  some  method  of  delimiting  their  respective  bound- 
aries, and  of  adjusting  overlapping  claims  was  one  of  the  first 
necessities  which  would  confront  them  in  a  new  country.  The  col- 
onies were  widely  separated  at  first,  and  there  was  little  opportu- 
nity for  friction.  Each  one  had  its  headquarters  or  capital  town, 
and  between  them  were  vast  wildernesses,  densely  forested  in 
some  places  and  inhabited  only  by  Indians  and  an  occasional 
settler.  Their  roads  were  often  little  more  than  paths  through 
the  woods.  There  were  none  but  local  manufactures,  practi- 
cally no  commerce,  and  but  little  intercourse  between  them. 
Such  commerce  as  they  had  was  carried  on  by  sea,  and  principally 
with  the  mother  country.  Under  such  circumstances  the  fixing 
of  exact  boundary  lines  between  the  colonies  was  of  little  practi- 
cal importance.  But  as  their  population  and  their  mutual  jeal- 
ousies increased,  their  territorial  claims  expanded,  the  situation 
became  acute,  and  by  the  tune  of  the  Revolution,  some  mode  of 
fixing  the  limits  of  each  became  imperative. 

To  meet  this  exigency,  the  ninth  article  of  the  Confederation, 
already  quoted,  was  adopted.  Several  actions  were  begun,  but 
only  one  proceeded  to  judgment.  This  was  a  controversy  between 
Connecticut  and  Pennsylvania  over  the  Wyoming  Valley,  origi- 
nally settled  by  colonists  from  Connecticut,  which  was  found  inca- 
pable of  adjustment,  and  had  resulted  in  an  actual  war  in  which 
stockades  and  forts  were  erected,  sieges  undertaken,  lives  lost 


80  JUDICIAL   SETTLEMENT 

and  prisoners  taken.  For  ten  years  Connecticut  remained  in 
possession,  until  a  force  of  five  hundred  men  was  levied  to  drive 
them  out. 

Upon  the  organization  of  the  Confederacy  a  court  was  ap- 
pointed to  sit  at  Trenton  to  try  the  case,  which  after  a  full  hearing 
and  fifteen  days  of  argument,  was  unanimously  decided  in  favor  of 
Pennsylvania.  Both  States  appear  to  have  acquiesced  in  the  deci- 
sion, though  the  proprietors  of  the  soil  under  grants  from  Con- 
necticut resisted  the  claims  of  Pennsylvania  almost  to  the  point  of 
actual  hostilities.  This  was  the  first  judgment  of  the  international 
court.  Other  cases  arose  between  Pennsylvania  and  Virginia; 
New  Jersey  and  Virginia,  over  "a  tract  of  land  called  Indiana"; 
Massachusetts  and  New  York;  South  Carolina  and  Georgia; 
New  Hampshire,  New  York  and  Massachusetts  against  Vermont, 
all  of  which  were  settled  in  the  preliminary  stages.  At  the  time 
of  the  adoption  of  the  Constitution,  there  were  existing  contro- 
versies between  eleven  of  the  thirteen  States  respecting  the  boun- 
daries under  their  charters,  which  had  continued  from  the  first 
settlement  of  the  colonies. 

The  provisions  of  the  Articles  of  Confederation  were  super- 
seded after  a  brief  existence  of  eleven  years  by  the  much  more 
comprehensive  provisions  of  the  Constitution,  which  created  a 
Supreme  Court  and  declared  that  it  should  have  exclusive  juris- 
diction of  cases  "in  which  a  State  shall  be  a  party." 

Few  cases  seem  to  have  arisen  in  the  early  years  of  the  govern- 
ment, between  the  States,  under  the  provisions  of  the  Constitu- 
tion vesting  original  jurisdiction  in  the  Supreme  Court,  although 
hi  a  large  number  of  cases  between  private  parties  the  Supreme 
Court  had  had  occasion  to  pass  upon  interstate  questions,  to  set- 
tle the  respective  powers  of  a  State  and  of  the  general  govern- 
ment, and  in  fact,  under  the  leadership  of  Marshall,  had  clothed 
the  Constitution,  which  was  a  mere  skeleton,  with  flesh  and  blood, 
and  made  of  it  an  operative  government.  Aside  from  two  boun- 
dary cases, — one  between  New  York  and  Connecticut,  in  1799, 


BROWN  8l 

and  another  between  New  Jersey  and  New  York  in  1829,  neither 
of  which  seems  to  have  been  determined  upon  the  merits, — it 
was  not  until  1833  that  the  great  case  of  Rhode  Island  against 
Massachusetts,1  which  may  be  called  the  foundation  case  upon 
this  branch  of  the  law,  came  up  for  adjudication.  It  was  before 
the  court  and  reported  seven  tunes.  The  bill  was  filed  to  deter- 
mine the  northern  boundary  of  Rhode  Island,  both  sides  claiming 
under  certain  royal  charters.  It  appeared  that  a  line  had  been 
fixed  by  commissioners  mutually  appointed  in  1642,  a  stake  set 
up  as  the  true  boundary,  and  the  report  of  the  commissioners 
approved  by  both  States.  The  question  of  the  jurisdiction  of 
the  court  over  contracts  between  States  was  elaborately  argued 
by  counsel,  and  fully  sustained  by  the  court,  and  has  never  since 
been  doubted.  It  was  further  held  that  the  fixing  of  a  boundary 
between  States  by  a  court  was  a  judicial  and  not  a  political  act, 
although  upon  this  point  Chief  Justice  Taney  dissented,  holding 
that  as  Rhode  Island  claimed  no  property  in  the  soil,  but  merely 
sovereignty  and  jurisdiction,  it  was  purely  a  political  question. 
The  case  was  vigorously  contested  by  the  most  eminent  counsel 
of  their  generation,  was  carried  to  the  Supreme  Court  several 
times  after  the  jurisdiction  was  settled,  and  finally  resulted  in 
the  report  of  the  Commissioners  being  sustained,  and  a  decree, 
which  concerned  a  strip  of  land  four  miles  in  width  across  the 
north  end  of  the  State  was  made,  awarding  the  territory  in  dispute 
to  Massachusetts;  and  thus  a  controversy  which  had  existed  over 
two  hundred  years  was  peacefully  and  amicably  settled.  The 
dispute  had  naturally  crept  into  the  politics  of  both  States,  and 
their  relations  at  one  time  had  been  quite  embittered. 

The  case  of  Missouri  vs.  Iowa*  was  also  a  boundary  case  and 
involved  purely  a  question  of  fact  as  to  a  certain  line  run  in  pur- 
suance of  a  treaty  with  the  Indians,  and  the  existence  of  certain 
rapids  on  the  Des  Moines  River. 

1  12  Pet.  713:  41  How.  491. 
*  7  How.  660. 


82  JUDICIAL  SETTLEMENT 

In  the  case  of  Florida  vs.  Georgia*  (1854)  the  only  question  de- 
cided was  that  the  United  States  was  entitled  to  intervene,  though 
not  as  a  party,  and  be  heard  upon  the  ground  that  it  represented 
the  interests  of  twenty-nine  other  States,  which  could  not  be  made 
parties  to  the  action.  It  does  not  appear  what  became  of  the 
case. 

The  case  of  Virginia  vs.  West  Virginia*  (1870),  while  nomi- 
nally a  boundary  case,  really  involved  the  question  whether  two 
counties  of  Virginia  had  been  properly  transferred  to  West  Vir- 
ginia at  the  time  of  the  separation  of  the  two  States.  The  decree 
was  that  they  had  been. 

In  Missouri  vs.  Kentucky,*  decided  in  the  same  year,  it  was  held 
that  Wolf  Island  in  the  Missouri  River  belonged  to  Kentucky. 

Cases  where  a  river  is  the  boundary  between  two  States  have 
been  peculiarly  prolific  of  litigation.  That  of  Alabama  vs.  Geor- 
gia,6 turned  largely  upon  the  definition  of  the  word  "river"  when 
used  as  a  boundary  line.  It  was  held  that,  under  the  circum- 
stances of  the  case,  the  State  of  Georgia  was  bounded  by  the  west 
bank  of  the  Chattahoochee  River,  and  was  the  proprietor  and 
owner  of  the  bed  of  the  river.  While  the  word  "river"  when 
used  as  a  boundary  ordinarily  imports  a  line  drawn  through  the 
center  of  the  river  or  thread  of  the  stream,  it  so  happens  that  in 
several  cases  the  bed  of  the  river  was  given  to  one  of  the  States, 
and  the  line  made  to  run  along  the  bank.  The  case  seems  really 
to  have  turned  upon  the  question  whether  the  bed  of  the  river 
was  bounded  by  its  high  or  by  its  usual  water  mark. 

A  similar  case  was  that  of  Indiana  vs.  Kentucky,7  which  involved 
a  tract  of  two  thousand  acres  of  land  on  the  north  side  of  the  Ohio 
River.  The  claim  of  Kentucky  was  based  upon  the  fact  that  the 

3 17  How.  478. 
4 11  Wall.  39. 
5 1  Wall.  395. 
8  23  How.  505. 
7 136  U.  S.  479. 


BROWN  83 

land  had  been  originally  an  island  in  the  river,  and  within. her 
jurisdiction  as  described  in  the  act  of  cession,  and  that  the  channel 
of  the  river  had  been  so  changed  by  natural  causes  as  to  run  south 
of  the  island,  and  leave  it  attached  to  the  Indiana  shore.  It  was 
held  that  this  did  not  affect  the  ownership  and  that  the  territory 
formerly  an  island  belonged  to  Kentucky,  though  on  the  Indiana 
side  of  the  channel.  As  the  Northwest  territory  ceded  by  Virginia 
to  the  United  States  was  described  as  lying  northwest  of  the  Ohio, 
it  was  held  that  this  description  excluded  the  bed  of  the  river,  and 
that  the  boundary  of  Kentucky  extended  to  the  northern  bank 
of  the  river  at  low  water  mark. 

Both  these  cases  suggest  the  interesting  question  as  to  which 
State  would  own  a  wharf  projecting  into  the  river  from  the  Indiana 
side.  If  Kentucky  owned  to  low  water  mark,  it  would  certainly 
own  the  wharf,  unless  the  individual  building  the  wharf  had  power 
to  change  the  boundary  line  of  the  State,  by  projecting  it  into 
the  waters  of  Kentucky.  Does  the  wharf  belong  to  Indiana,  by 
virtue  of  the  fact  that  it  is  built  from  the  Indiana  shore;  or  to 
Kentucky  by  virtue  of  its  being  in  Kentucky  waters? 

The  counter-cases  of  Missouri  and  Nebraska8  (1904)  involved 
the  ownership  of  a  parcel  of  land  which  had,  by  the  operation  of 
a  freshet,  been  transferred  in  a  single  night  in  July,  1867,  to  the 
Missouri  side  of  the  river,  by  the  shifting  of  its  course  and  the 
cutting  of  a  new  channel  through  the  State  of  Nebraska.  A  dis- 
tinction was  drawn  in  this  case  between  an  accretion  or  gradual 
wearing  away  of  the  bank  of  a  river,  and  an  avulsion,  or  tearing 
away  of  the  land  by  the  sudden  opening  of  a  new  channel.  In 
the  latter  case,  the  boundary  is  not  changed,  but  remains  as 
before,  and  hence  the  land  was  adjudged  to  Nebraska,  though  on 
the  Missouri  side  of  the  river.  A  similar  case  between  Iowa  and 
Nebraska  arose  in  1891  and  was  decided  upon  the  same  principles. 
143  U.  S.  359. 

•  196  U.  S.  23. 


84  JUDICIAL   SETTLEMENT 

The  case  of  Louisiana  vs.  Mississippi9  (1905)  concerned  a  clus- 
ter of  islands  in  what  is  known  as  the  Mississippi  Sound,  in  the 
northern  part  of  the  Gulf  of  Mexico,  chiefly  valuable  for  its  oyster 
beds.  It  may  be  remarked  that  the  appetizing  oyster  has  been 
a  fertile  source  of  litigation,  and  sometimes  of  warlike  demonstra- 
tions, between  the  Southern  States  for  at  least  a  century.  The 
case  also  involved  the  meaning  of  the  term  "thalweg,"  or  mid- 
channel,  as  used  in  international  law.  The  islands  in  dispute 
were  awarded  to  Louisana,  and  jurisdiction  over  them  was  relin- 
quished by  Mississippi  without  opposition. 

In  Iowa  vs.  Illinois10  (1892)  the  controversy  arose  between  the 
two  states  as  to  the  taxability  of  nine  bridges  across  the  Mississippi 
between  them.  Illinois  claimed  the  right  to  tax  them  to  the  mid- 
dle of  the  steamboat  channel,  Iowa  claiming  to  the  middle 
of  the  body  of  the  river  between  the  banks,  regardless  of  the 
channel  of  commerce.  The  court  declared  the  boundary  line 
to  be  the  middle  of  the  main  navigable  channel,  and  not  the  middle 
of  the  bed  of  the  river  between  the  banks. 

On  the  contrary,  in  a  suit  between  Washington  and  Oregon11 
(1908)  it  was  held  that  the  middle  of  the  main  channel  of  the 
Columbia  River  was  not  necessarily  the  exact  line  between  the  two 
States,  and  that,  where  the  boundary  is  established  in  the  center 
of  a  particular  channel,  it  so  remains,  subject  to  changes  by  accre- 
tion, notwithstanding  another  channel  may  become  more  impor- 
tant and  be  regarded  as  the  main  channel  of  the  river. 

A  similar  case  was  that  of  Missouri  vs.  Kansas12  (1098)  where 
the  boundary  line  between  them  was  held  to  be  the  middle  of  the 
Missouri  River,  notwithstanding  its  shifting  position  in  conse- 
quence of  erosion,  and  that  an  island  in  the  Missouri  River  west 
of  its  main  channel,  as  that  channel  now  exists,  belongs  to  Kansas, 
notwithstanding  such  island  is  east  of  the  original  boundary  line 

9  202  u.  s.  i. 

10 147  U.  S.  1. 

11 211  U.  S.  127;  214  U.  S.  205. 

12  213  U.  S.  78. 


BROWN  85 

In  a  case  between  Maryland  and  West  Virginia13  (1910)  long 
continued  possession  and  acquiesence  in  a  boundary  line  run  in 
1788  was  held  to  govern,  notwithstanding  it  may  not  be  astro- 
nomically correct. 

These  are  practically  all  the  boundary  cases  between  the  States. 
Considering  that  the  number  of  States  has  varied  from  thirteen 
to  forty-six;  that  most  of  the  boundaries  were  not  marked  by 
artificial  monuments;  that  of  those  that  were  erected  many  have 
been  forgotten,  neglected  or  have  decayed,  and  in  one  or  two  cases 
a  re-survey  had  to  be  made;  that  where  the  dividing  line  was  a 
river,  its  course  was  often  diverted  by  the  shifting  of  sands,  thus 
changing  the  channel,  or  transferring  land  from  one  side  of  the 
river  to  the  other,  or  through  the  operation  of  a  freshet,  the  waters 
would  open  a  new  channel  for  themselves  by  cutting  the  neck  of 
an  oxbow,  leaving  large  tracts  of  land  upon  the  other  side  of  the 
channel;  we  ought  rather  to  be  surprised  that  only  some  twenty 
cases  have  arisen  and  gone  to  judgment. 

But  while  the  boundary  cases  constitute  the  most  numerous 
class,  they  are  by  no  means  the  only  source  of  litigation  between 
the  States.  The  ordinary  causes  of  contention  between  individ- 
uals occasionally  arise  between  States,  and  are  productive  of  liti- 
gation. The  Eleventh  Amendment  to  the  Constitution  declared 
that  the  judicial  power  of  the  United  States  should  not  extend  to 
suits  by  private  citizens  against  a  State.  Being  thus  barred  from 
suing  in  their  own  names,  certain  enterprising  citizens  of  New  York 
and  New  Hampshire  in  1882,  holding  bonds  of  the  State  of  Louis- 
iana, which  they  were  unable  to  collect,  conceived  the  idea  of 
assigning  their  bonds  to  their  own  States  and  bringing  actions  in 
the  name  of  these  States  against  Louisiana,  and  thus  avoid  the 
effect  of  the  Amendment.  They  seem  to  have  had  no  difficulty 
in  obtaining  the  consent  of  their  own  legislatures  to  this  arrange- 
ment, as  legislatures  like  individuals  are  always  anxious  that 
other  people  should  pay  their  debts.  But  they  had  yet  to  obtain 

»  217  U.  S.  1,  577. 


86  JUDICIAL  SETTLEMENT 

the  sanction  of  the  Supreme  Court,  which  was  not  forthcoming. 
That  court  held14  that  one  State  cannot  create  a  controversy  with 
another  within  the  meaning  of  the  Constitution  by  assuming  the 
prosecution  of  debts  owing  by  such  other  State  to  its  own  citi- 
zens. 

Certain  bond  holders  of  the  State  of  North  Carolina,  warned 
by  the  failure  of  this  attempt  to  circumvent  the  Constitution, 
resorted  to  a  more  successful  device.  The  owners  of  these  bonds 
having  their  offices  in  Wall  Street,  and  being  as  they  themselves 
declared,  "persons  who  liberally  give  charity  to  the  needy,  the 
deserving  and  the  unfortunate,"  donated  ten  of  these  bonds  to 
the  State  of  South  Dakota  for  the  benefit  of  some  of  its  asylums  and 
other  charities.  The  State  accepted  them,  and  brought  suit 
against  the  State  of  North  Carolina  in  1903.  As  the  bonds  were 
given  outright  and  absolutely  to  the  State,  the  Supreme  Court 
found  that  the  motives  which  actuated  the  donors  were  immate- 
rial, and  held  that  the  plaintiff  was  entitled  to  judgment,  four 
Justices  dissenting.15  In  view  of  the  fact  that  the  original  owners 
of  these  bonds  were  the  owners  of  the  entire  issue  of  $250,000, 
there  may  be  a  suspicion  that  they  hoped  hi  some  way  to  secure 
the  payment  of  the  whole  issue,  as  well  as  a  handsome  commis- 
sion from  the  State  of  South  Dakota  for  collecting  the  amount 
recovered  upon  the  judgment.  But  in  giving  reasons  for  judg- 
ments, suspicions  are  very  unsafe  arguments.  Besides,  we  have 
a  high  authority  for  saying  that  charity  covereth  a  multitude  of 
sins. 

In  1906  the  Supreme  Court  sustained  jurisdiction  in  a  suit  by 
Virginia  against  West  Virginia16  for  an  accounting  for  a  proper 
proportion  of  the  public  debt  of  the  old  commonwealth,  but  the 
suit  has  not  yet  gone  to  judgment. 

Another  class  of  cases  has  recently  appeared,  turning  upon  the 

14 108  U.  S.  76. 
16 192  U.  S.  286. 
"  206  U.  S.  290. 


?ROWN  87 

right  to  control  the  waters  flowing  through  different  States.  The 
earliest  case  arose  in  connection  with  the  celebrated  drainage 
canal  from  Lake  Michigan  to  the  Mississippi,  which  was  built 
for  the  purpose  of  carrying  off  and  eventually  discharging  into 
the  Mississippi,  the  sewage  of  Chicago,  instead  of  ejecting  it  into 
Lake  Michigan,  as  had  previously  been  done.  The  court  over- 
ruled a  demurrer  and  sustained  a  bill  brought  by  the  State  of 
Missouri  against  Illinois  and  the  Sanitary  District  of  Chicago,17 
upon  the  ground  that  the  construction  of  the  canal  would  prove 
dangerous  to  the  health  of  Missouri  and  its  inhabitants.  Upon 
a  subsequent  hearing  on  the  merits,  it  was  held  that  the  plaintiff 
had  not  made  out  its  case  of  a  nuisance  dangerous  to  health,  and 
the  suit  was  dismissed  without  prejudice  to  another,  if  other  facts 
were  developed. 

Shortly  thereafter  another  case  arose  of  even  greater  importance. 
This  was  a  suit  brought  by  the  State  of  Kansas  against  the  State 
of  Colorado  18  to  enjoin  her  from  absorbing  for  the  use  of  her  own 
inhabitants  the  waters  of  the  Arkansas  River,  which  arises  hi 
the  Rocky  Mountains  hi  Colorado  and  flows  through  the  State 
into  Kansas,  and  there  becomes  a  navigable  stream  usable  for 
the  purposes  of  trade  and  commerce.  The  allegations  of  the  bill 
relied  upon  the  fact  that  Colorado  was  making  use  of  more  than 
her  share  of  the  water  for  the  purposes  of  irrigation,  and  would 
ultimately  absorb  the  whole  of  it,  and  ruin  the  river  for  navigable 
purposes  within  the  State  of  Kansas.  The  jurisdiction  was  sus- 
tained, but  upon  a  hearing  upon  the  merits  the  court  acted  as  it 
did  in  the  Chicago  drainage  case,  holding  that  Colorado  had  not 
diverted  so  much  of  the  water  as  to  make  an  inequitable  appor- 
tionment between  the  two  States,  the  advantages  accruing  to 
Colorado  by  irrigation  being  a  fair  off  set  to  any  injury  done  to 
Kansas  by  diminishing  the  use  of  her  portion  of  the  river  for  the 
purposes  of  navigation.  The  suit  was  dismissed  without  preju- 

17  180  U.  S.  208;  200  U.  S.  496. 
»•  206  U.  8.  406. 


88  JUDICIAL   SETTLEMENT 

dice  to  a  new  one,  in  case  it  was  made  to  appear  that  Colorado 
was  appropriating  a  quantity  of  water  to  the  material  injury  of 
the  river  in  Kansas,  and  also  without  prejudice  to  the  right  of 
the  Federal  Government  to  take  action  deemed  to  be  necessary 
to  preserve  the  navigability  of  the  river. 

The  only  interesting  case  I  have  met  with  in  which  jurisdic- 
tion was  declined  is  that  of  Louisiana  vs.  Texas1*  in  1899.  Texas 
had  established  certain  quarantine  regulations  against  contagious 
diseases  which,  as  charged  by  Louisiana,  had  been  enforced  in  a 
way  and  with  a  purpose  to  build  up  the  commerce  of  Texan  cities, 
which  were  rivals  to  New  Orleans.  An  injunction  was  prayed 
to  restrain  Texan  officers  from  enforcing  against  the  interstate 
commerce  from  Louisiana  or  any  part  thereof  an  embargo,  or 
rules  or  regulations  discriminating  against  Louisiana  or  any  part 
thereof,  of  differing  from  or  more  burdensome  upon  commerce 
from  Louisiana  than  from  other  States.  The  suit  was  dismissed 
upon  the  ground  that  there  was  no  controversy  between  the  two 
States  as  such,  but  one  to  vindicate  the  grievances  of  certain  pri- 
vate individuals  in  New  Orleans,  which  seem  to  have  been  the  only 
citizens  of  the  State  particularly  interested  in  the  controversy. 
There  seems  to  have  been  more  of  commercial  rivalry  than  danger 
of  contagion  at  the  bottom  of  the  case. 

The  pertinence  of  these  cases  to  the  question  of  the  judicial 
settlement  of  international  disputes  depends  less  upon  the  fact 
that  by  applying  for  admission  to  the  Union,  the  States  agreed 
to  the  creation  of  an  international  court  to  settle  all  controversies 
between  them,  than  to  the  universal  acquiescence  in  the  decrees 
of  that  court,  and  in  their  enforcement  without  compulsory  proc- 
ess. There  have  been  cases  where  the  States  have  protested 
against  the  interference  of  the  Supreme  Court  and  threatened  to 
use  force,  as  where  Georgia  denounced  the  penalty  of  death  against 
any  one  who  should  attempt  to  enforce  the  process  of  the  Supreme 

19 171  U.  S.  i. 


BROWN  89 

Court  in  the  Chisholm  case,  in  which  the  court  held  that  a  State 
could  be  sued  by  private  person  for  a  debt;  and  Pennsylvania 
resisted  with  its  State  militia  the  decree  in  the  case  of  the  sloop 
Active.  But  both  of  these  were  cases  between  individuals,  though 
involving  the  respective  authorities  of  the  State  and  the  Federal 
Governments.  In  both  cases  the  States  finally  yielded  and  no 
actual  resort  to  arms  was  necessary  to  vindicate  the  authority  of 
the  Supreme  Court. 

Even  in  the  celebrated  Dred  Scott  case,  the  decree  of  the  court 
was  acquiesced  in,  although  the  majority  of  the  Justices  gave  ut- 
terances to  an  opinion  which  ultimately  resulted  in  the  Civil  War. 
A  court  having  jurisdiction  of  controversies  between  States  is  an 
absolute  necessity  in  a  confederation  such  as  ours,  since  war  is 
practically  the  only  alternative.  It  is  true  the  Constitution, 
Article  I,  Section  8,  provides  that  no  State  shall  engage  in  war,  but 
this  is  coupled  with  the  provision  that  the  Supreme  Court  should 
have  jurisdiction  of  controversies  between  the  States,  without 
which  the  former  would  be  a  mere  brutum  fulmen. 

That  a  war  between  the  States  is  always  a  possibility  to  be 
reckoned  with  is  evident  not  only  from  the  war  actually  carried 
on  between  Pennsylvania  and  the  Connecticut  colonists  in  the 
Wyoming  Valley,  to  which  allusion  had  already  been  made,  but 
from  a  quarrel  between  Michigan  and  Ohio  in  1835,  popularly 
known  as  the  "Toledo  War."  The  Governor  of  Ohio  asserted 
jurisdiction  over  the  coveted  strip,  and  urged  legislation  to  enforce 
it.  The  legislative  council  of  Michigan,  to  meet  this,  passed  an 
act  to  prevent  the  exercise  of  foreign  jurisdiction  within  the  terri- 
tory of  Michigan,  which  had  not  yet  been  admitted  as  a  State. 
Both  legislative  bodies  adopted  defiant  resolutions,  and  provided 
for  the  enlistment  and  equipment  of  troops.  Commissioners 
were  appointed  to  conciliate  the  warring  factions,  but  apparently 
to  no  purpose.  Michigan  marched  troops  into  Toledo  to  organ- 
ize a  court  there,  and  again  marched  them  out  and  disbanded 
them.  Congress  took  but  little  interest  in  the  matter.  The 


90  JUDICIAL  SETTLEMENT 

Supreme  Court  was  thought  to  be  without  jurisdiction,  because 
Michigan  had  not  been  admitted  as  a  State,  and  the  Constitution 
was  interpreted  to  provide  only  for  suits  between  States.  How 
the  affair  was  settled  does  not  clearly  appear,  but  the  disputed 
territory  was  ultimately  awarded  to  Ohio,  and  she  has  continued 
to  be  hi  peaceable  possession.  The  only  lives  lost  were  those  of 
two  horses, — one  a  Michigan  and  the  other  an  Ohio  steed.  As 
a  political  war  cry,  it  was  a  great  success;  as  an  actual  war  it  was 
a  total  failure. 

How  far  independent  nations,  connected  with  no  tie  of  a  com- 
mon constitution  such  as  ours,  could  be  induced  to  yield  to  an 
international  tribunal  so  much  of  their  sovereignties  as  would  be 
necessary  for  the  maintenance  of  a  permanent  peace  is  a  far  differ- 
ent proposition  from  the  one  presented  in  this  country.  Even 
under  the  conditions  of  our  Constitution  we  found  the  Supreme 
Court  utterly  inadequate  to  deal  with  a  case  where  a  large  number 
of  States  on  one  side  were  arrayed  against  a  large  number  on  the 
other  side  of  a  political  issue, — in  other  words,  while  the  country 
was  convulsed  over  a  question  which  was  thought  by  both  sides 
to  go  to  the  very  essence  of  a  free  government,  it  was  monstrous 
to  suppose  that  a  universal  agitation  could  be  quieted  down  by 
the  opinion  of  a  majority  of  nine  men,  although  its  judgment  in 
a  particular  case  might  be  acquiesced  in.  A  tribunal  competent 
to  deal  successfully  with  a  legal  question  between  two  States  might 
be  wholly  inoperative  when  applied  to  a  controversy  between  a 
dozen  States  upon  each  side.  The  provisions  of  the  Constitution, 
admirable  as  they  are,  do  not  contemplate  a  political  contro- 
versy between  half  of  the  States  upon  one  side  and  half  upon  the 
other.  Herein  lies  a  certain  inapplicability  of  precedents  in  our 
Supreme  Court  to  relations  between  States  whollv  foreign  to 
each  other. 

In  order  that  international  controversies  be  judicially  settled, 
there  must  be  an  agreement  of  all  the  civilized  powers  in  the  crea- 
tion of  a  tribunal,  in  the  'selection  of  its  members,  and  in  the  en- 


BROWN  91 

forcement  of  its  decrees.  There  are  difficulties  connected  with 
all  of  these.  States  which  might  be  perfectly  willing  to  abide 
by  the  decree  of  an  impartial  tribunal  respecting  boundaries, 
riparian  or  water  rights,  or  pecuniary  liability,  might  in  our  imper- 
fect state  of  civilization  revolt  at  the  idea  of  submitting  to  a  decree 
curtailing  their  ambitions,  or  impairing  their  independence. 
Hence  we  find,  hi  the  arbitral  treaties  concluded  since  the  Hague 
Conferences,  clauses  excluding  from  their  operation  cases  involv- 
ing the  independence,  vital  interests  or  honor  of  the  parties,  but 
providing  no  method  of  determining  whether  a  particular  case 
does  involve  any  of  these  questions. 

Again  with  regard  to  the  personnel  of  the  court.  This  is  a 
matter  of  exceeding  difficulty.  Either  the  court  must  be  so  large 
as  to  contain  representatives  of  every  civilized  nation,  and  thus 
become  too  cumbersome  for  practical  use,  or  the  judges  must  be 
selected  with  reference  to  the  particular  case, — the  present  plan. 
No  workable  court  could  be  impaneled  which  could  deal  success- 
fully with  all  cases  liable  to  be  brought  before  it.  It  is  easy  to 
conceive  of  two  of  the  Latin  nations  agreeing  upon  arbitrators 
or  judges  who  might  be  wholly  unacceptable  to  the  nations  of 
northern  Europe.  It  would  hardly  be  expected  that  oriental 
states  would  be  willing  to  submit  their  differences  to  occidental 
judges,  or  that  England  and  Germany  would  ever  consent  to  be 
bound  by  the  judgment  of  a  court  composed  of  Chinese  and  Japan- 
ese judges,  or  even  of  those  of  Italy  and  Spam.  There  are  also 
religious  differences,  as  between  Mohammedan  and  Christian, 
Protestant  and  Catholic,  Roman  and  Greek,  which  might  com- 
plicate the  situation  and  render  a  permanent  court  impracticable. 
Hence  it  seems  that  the  present  system  of  appointing  one  member 
of  the  court  from  each  of  the  contending  nations,  with  three,  five 
or  seven  neutrals,  contains  the  greatest  promise  of  success.  No 
one  who  was  present  at  The  Hague  during  the  argument  of  the 
Fisheries  case  could  fail  to  be  impressed  by  the  dignity  of  the 
court,  the  apparent  desire  of  all  the  members  to  do  exact  justice 


92  JUDICIAL   SETTLEMENT 

between  the  parties,  even  though  it  involved  opinions  by  the  two 
representative  judges  of  England  and  the  United  States  adverse 
to  their  own  countrymen.  It  was  easy  to  see,  without  a  personal 
acquaintance  with  the  neutral  members  of  the  court,  that  they 
were  men  of  great  learning  and  strength  of  character, — an  impres- 
sion which  was  not  belied  by  their  answers  to  the  questions  sub- 
mitted to  them.  Looking  at  the  work  done  by  this  court,  and 
the  satisfaction  expressed  by  both  sides  at  its  judgment,  a  dis- 
interested observer  is  impressed  with  the  idea  that  a  successful 
disposition  of  a  long  standing  dispute  has  precluded  almost  the 
possibility  of  a  war  with  Great  Britain. 

Obviously  some  method  must  be  found  of  enforcing  obedience 
to  the  decree  of  an  international  court.  This  can  only  be  done 
directly  in  two  ways.  First,  by  the  victorious  party  using  its  own 
army  and  navy  and  virtually  carrying  on  a  war,  which  it  was  the 
very  object  of  the  arbitration  to  avoid;  or,  second,  by  the  establish- 
ment of  an  international  force  large  enough  to  compel  the  sub- 
mission of  the  defeated  party.  There  are  so  many  obstacles  to 
the  exercise  of  such  a  power  in  cases  where  but  one  or  two  nations 
are  interested, — so  many  natural  jealousies  to  be  surmounted  in 
carrying  out  the  decree,  that  it  can  hardly  be  regarded  as  a  prac- 
ticable method  of  enforcement. 

The  creation  of  a  world-wide  public  opinion,  strong  enough  to 
curb  the  war-like  propensities  of  particular  nations,  seems  to  me 
our  only  reliance  in  the  present  state  of  civilization.  Such  prog- 
ress as  has  already  been  made  in  this  direction  has  been  the  result 
of  an  increasing  conviction  of  the  uselessness  of  wars,  and  an  in- 
creasing belief  that  in  the  blessings  of  peace  is  to  be  found  the  true 
grandeur  of  nations.  A  stable  public  opinion  is  usually  a  matter 
of  slow  growth,  but  in  view  of  what  has  already  been  accomplished 
we  may  be  hopeful,  though  not  sanguine,  that  very  much  more  may 
be  done,  and  a  peace  sentiment  established  which  will  ultimately 
sweep  the  whole  world  into  its  embrace.  Wars  for  trivial  causes 
have  already  practically  ceased  between  civilized  nations.  May 


NOMINATING  COMMITTEE  93 

we  not  contemplate  the  awakening  of  a  public  sentiment  that  even 
emperors,  kings  and  ministries  may  not  defy?  The  first  step 
in  this  direction  must  be  the  limitation  of  armaments  by  treaty. 
So  long  as  the  great  powers  of  Europe  persist  in  multiplying  their 
Dreadnoughts,  and  in  training  every  man  as  a  soldier  liable  to 
be  called  upon  for  immediate  service,  employment  must  be  found 
for  them  to  justify  their  existence.  The  world  will  not  continue 
to  burden  itself  with  the  enormous  expense  of  modern  armaments 
without  an  occasional  showing  of  its  necessity.  While  there  may 
be  some  truth  in  the  adage  that  a  readiness  for  war  is  an  assurance 
of  peace,  there  is  another  side  to  the  proposition, — an  instant 
preparedness  for  war  by  one  nation,  invites  a  coalition  of  powers 
to  resist  it,  which  will  ultimately  bring  on  a  general  war.  This 
was  the  case  in  Napoleon's  time,  when  the  readiness  of  France 
for  war  brought  on  a  combination  of  European  states  resulting 
in  the  ultimate  destruction  of  the  dynasty. 

To  such  efforts  as  this  and  kindred  societies  may  be  able  to 
make, — to  a  gradually  increasing  pressure  of  public  opinion  upon 
the  leading  statesmen  of  Europe,  the  world  may  yet  in  the  prog- 
ress of  time  be  brought  to  adjust  its  difficulties  upon  the  basis  of 
an  enlightened  judicial  settlement. 

NOMINATING  COMMITTEE 

THE  CHAIRMAN  (MARBURG)  :  It  is  necessary  at  this  point  to 
interpose  a  small  matter  of  business.  We  require  a  committee 
to  nominate  the  successors  to  the  officers  for  this  Society  whose 
terms  will  expire  in  February.  What  is  your  pleasure? 

MR.  F.  B.  Looms:  I  move  that  the  Chairman  be  authorized 
to  appoint  a  nominating  committee  who  shall  report  at  the  close 
of  the  meeting  to-morrow  morning. 

(The  motion  was  seconded  and  agreed  to.) 


94  JUDICIAL   SETTLEMENT 

THE  CHAIRMAN  (MARBURG):  The  Chairman  will  nominate 
Henry  B.  F.  Macfarland,  of  the  District  of  Columbia,  S.  T.  Mitchell, 
of  South  Carolina,  and  George  G.  Wilson,  of  Rhode  Island,  to  report 
nominations  to  this  Convention  to-morrow,  Saturday,  morning. 

It  is  my  great  pleasure  to  present  to  you  now  Mr.  Frederic  D. 
McKenney,  a  distinguished  member  of  the  Washington  Bar,  a 
gentleman  whose  practice  has  familiarized  him  with  the  question 
under  discussion.  He  will  address  us  on  the  subject  of  "Objec- 
tions to  the  Present  Hague  Court." 

OBJECTIONS  TO  THE  PRESENT  HAGUE  COURT 

FREDERIC  D.  MCKENNEY 

Mr.  Chairman,  Members  of  the  Society  and  our  Guests: 
Contrary  to  a  somewhat  prevalent  idea,  it  has  not  remained  for 
the  people  of  our  day  and  generation  to  discover  that  arbitration 
as  a  means  of  composing  difficulties,  either  between  individuals 
or  nations,  is  a  good  thing.  The  gentlemen  of  our  State  Depart- 
ment who  have  charge  of  such  matters  will  tell  you  that  through- 
out the  period  of  the  history  of  this  country,  and  throughout  the 
period  of  the  history  of  countries  older  than  ours,  there  has  been 
a  general  disposition,  a  general  readiness,  on  the  part  of  the  govern- 
ments and  of  the  peoples,  to  agree  to  the  proposition  of  arbitra- 
tion in  principle.  The  difficulty  of  bringing  about  arbitration  in 
fact  has  always  lain  in  establishing  the  articles,  or  the  basis,  upon 
which  the  matters  in  dispute  are  to  be  submitted  to  the  arbitrators 
for  their  decision.  This  difficulty  is  a  natural  one.  It  grows  out 
of  the  fact  that  if  arbitration  is  to  survive,  or  indeed  if  it  is  to  have 
any  place  in  the  settlement  of  differences  between  nations,  it 
must  give  practical  results.  It  must  justify  itself  by  its  works. 
It  will  not  do  when  a  people  or  a  government  is  smarting  under  a 
sense  of  wrong,  and  insisting  that  the  wrong  be  righted, — if  hap- 
pily it  be  induced  to  submit  its  complaint  to  arbitration, — for 


MCKENNEY  95 

the  arbitral  tribunal,  after  a  reasonable  lapse  of  time  and  after  a 
show  of  consideration,  to  merely  hand  to  each  of  the  litigant  par- 
ties certificates  of  good  character.  Arbitration,  if  it  is  to  prevail, 
must  demonstrate  by  processes  of  logic  and  of  right  reason  that 
the  quarrel  is  without  foundation  or  if  it  be  found  to  be  well 
grounded  then  it  must  truly  and  appropriately  right  the  wrong 
which  has  given  rise  to  it. 

Arbitration  is  not  a  present  day  idea.  History,  or  what  passes 
for  history,  records  a  dispute  between  the  Athenians  and  certain 
neighboring  states  regarding  title  to  the  Island  of  Salamis.  The 
disputants  agreed  to  submit  their  differences,  or  that  territorial 
difference,  to  the  arbitration  of  people  of  an  independent  nation. 
Five  neutral  arbitrators  were  chosen  to  judge  the  dispute,  and  so 
well  did  they  perform  their  duty  in  that  particular  instance  that 
war  was  averted.  That  arbitration  occurred  six  hundred  years 
before  the  birth  of  Christ. 

Even  at  that  early  day  the  disputants  recognized  the  desira- 
bility of  being  represented  before  such  a  tribunal  by  agents  and 
counsel.  Plutarch  records  that  on  that  memorable  occasion  Solon 
acted  as  the  agent  and  counsel  for  the  Athenians  and  performed 
his  services  in  so  satisfactory  a  manner  that  he  gained  much  credit 
from  the  affair.  Being  a  member  of  the  legal  profession,  I  have 
ventured  the  hope  that  credit  was  not  his  sole  reward. 

Although  the  Romans,  in  the  plenitude  and  fullness  of  their 
power,  rarely  if  ever  submitted  one  of  their  quarrels  to  the  judg- 
ment of  an  arbitral  tribunal;  they  were  not  infrequently  called 
upon  to  adjudge  the  disputes  of  their  neighbors. 

If  recognition  of  the  desirability  of  arbitration,  in  principle, 
was  all  that  was  needed  to  demonstrate  its  usefulness,  arbitration 
would  have  become  as  prevalent  and  as  deeply  appreciated  two 
thousand  years  ago  as  it  is  to-day;  but  when  Rome,  disregarding 
logic  and  right  reason,  saw  fit  to  adjudge  territory  in  dispute 
between  two  independent  peoples  as  forfeit  to  herself,  a  suspicion 
and  a  fear  of  so-called  "impartial"  arbitration  permeated  the 


g6  JUDICIAL   SETTLEMENT 

minds  of  many  people,  and  arbitration  made  but  little  progress 
in  the  world. 

We  can  well  claim  that  in  latter  days  we  have  made  great  prog- 
ress along  the  pathway  of  arbitral  settlement  of  international 
disputes.  We  can  well  claim  that  the  establishment  of  the  Inter- 
national Court  at  The  Hague  has  marked  an  era,  perhaps  not  so 
unique  as  that  marked  by  the  submission  of  the  dispute  respecting 
Salamis,  but  nevertheless  an  era  in  the  history  of  arbitration,  and 
one  that  bodes  much  good.  Already  some  eight  causes  have  been 
submitted  to  the  arbitrament  of  that  tribunal.  While  wars  have 
not  followed  the  promulgation  of  any  of  its  decisions,  it  is  never- 
theless true  that  in  some  quarters  discontent  with  the  course  of 
procedure  and  of  the  results  achieved  has  manifested  itself,  and 
mutterings,  perhaps  not  very  loud,  but  nevertheless  somewhat 
deep,  can  be  heard  by  those  who  have  an  ear  to  hear. 

The  Hague  Tribunal  is  not  perfect.  It  is  not  proving  itself 
capable  of  giving  those  logical  and  juridical  results  which,  as  was 
said  a  moment  ago,  must  be  obtained  if  arbitration  is  to  persist 
and  live.  If  we  mention  some  of  the  practical  objections  which 
have  arisen  from  the  workings  of  that  tribunal,  while  recognizing 
fully  the  great  good  it  has  accomplished,  neither  I  nor  this  Society 
can  be  deemed  to  be  either  ungracious  or  unmindful  of  such  accom- 
plishment. 

Some  of  the  greatest  difficulties  which  have  been  encountered 
are  difficulties  incident  to  composing  a  special  court  to  determine 
each  specific  dispute.  We  speak,  affectionately  perhaps,  of  "the 
permanent  court  of  arbitration  at  The  Hague!"  As  has  already 
been  said  in  the  course  of  this  meeting,  it  is  hi  truth  not  a  perma- 
nent court  at  all.  There  is  nothing  even  approximating  perma- 
nency about  it,  except  perhaps  a  list  of  names  and  a  clerical  force. 
Even  the  bureau  of  permanent  council,  as  it  is  called,  is  not  per- 
manent, because  its  membership  changes  with  the  constantly 
recurring  changes  in  the  membership  of  the  diplomatic  corps 
accredited  to  The  Hague.  It  would  be  rather  better  to  call  it  a 
continuing  body  than  a  permanent  body. 


MCKENNEY  97 

Now  the  necessary  result  of  the  absence  of  permanent  character 
is  the  lapse  of  tune,  the  long  and  wearying  delays  in  the  making 
up  of  the  personnel  of  the  particular  "court"  which  occur  after 
the  disputant  nations  have  agreed  to  submit  their  differences  to 
the  tribunal. 

The  practice  formerly  prevailing  of  selecting  nationals  of  the 
disputant  nations  to  serve  on  international  commissions  gave  rise 
to  easily  recognized  and  well  understood  difficulties.  As  was 
said  last  night  by  one  of  the  distinguished  speakers,  the  nationals 
instead  of  acting  as  judges,  as  impartial  arbitrators,  assumed  too 
much  the  attitude  of  advocates  or  partisans.  And  so  in  connec- 
tion with  the  present  tribunal  at  The  Hague  the  principle  of 
selecting  a  court  composed  of  non-nationals  has  become  well 
established.  It  was  thought  that  by  this  plan  the  difficulty  inci- 
dent to  the  service  of  nationals  had  been  entirely  overcome. 
Experience  has  demonstrated  the  contrary.  The  non-nationals, 
arbitrarily  selected  by  one  or  the  other  of  the  disputants,  readily 
take  on  the  color,  the  attitude  of  mind,  of  the  disputant  to  whom 
they  owe  their  selection;  and  we  have  the  old  difficulty,  though 
perhaps  in  a  somewhat  lesser  degree,  of  partisanship  and  advo- 
cacy, and  an  attempt  to  save  the  face  of  the  disputant  nations 

As  this  difficulty  must  be  met  and  overcome  if  the  Hague  tri- 
bunal is  to  survive  as  an  active  and  efficient  force,  I  suggest  that 
instead  of  each  disputant  being  given  the  arbitrary  and  complete 
power  to  select  one  or  two  arbitrators  who  in  turn  jointly  select 
the  third  or  fifth  arbitrator, — the  usual  course  under  the  existing 
system, — it  should  be  provided,  either  by  agreement  or  by  amend- 
ment of  the  present  Hague  Convention,  that  each  nation  party 
to  a  controversy  should  submit  to  the  other  an  agreed  number  of 
available  and  competent  judges  (say  three  in  case  the  court  is  to 
consist  of  three  members,  or  five  or  more,  if  the  court  is  to  consist 
of  a  greater  number),  and  let  the  opposing  nation  select  two  or 
more  names  from  the  list  tendered  to  it,  and  vice  versa,  and  that 
from  the  final  list  thus  selected  the  "court"  should  be  composed. 


98  JUDICIAL  SETTLEMENT 

The  result  then  would  be  that  while  each  nation  would  nominatej 
it  would  remain  for  the  other  nation  to  choose.  None  of  the 
persons  finally  selected  would  be  under  special  obligations,  fan- 
cied or  implied,  to  either  of  the  disputants.  Moreover,  when 
the  selections  shall  have  been  made  in  this  way,  let  the  notifica- 
tions to  the  persons  selected  be  sent  either  jointly  by  the  two 
governments,  or  through  the  permanent  tribunal  at  The  Hague, 
in  order  that  neither  party  may  obtain  a  real  or  fancied  advantage 
by  rushing  to  a  nearby  telegraph  office  to  congratulate  the 
appointees,  and  to  assure  them  of  the  distinguished  national 
appreciation  which  may  be  expected  to  follow  their  services. 
These  objections  incident  to  the  present  system  are  well  known 
by  those  who  have  come  in  actual  touch  with  the  operations  of 
the  Hague  tribunal. 

Then  again,  there  is  the  objection  of  the  great  expense  attend- 
ing the  organization  and  maintenance  of  these  courts,  constituted 
as  they  are  for  special  cases.  We  maintain  armies  and  navies, 
either  to  prevent  war  or  to  enforce  demands.  We  maintain  a 
State  Department  to  argue  out  claims  and  to  settle  them  where 
possible.  In  the  case  of  both  the  general  funds  of  the  nation  are 
employed  to  defray  the  expenses  attending  such  settlements; 
but  when  a  quarrel  now  arises  in  the  results  of  which  a  private 
claimant  is  interested,  and  for  the  purpose  of  avoiding  possible 
war,  this  quarrel,  undertaken  on  behalf  of  private  claimants,  is 
referred  by  the  interested  nations  to  The  Hague,  it  is  the  fashion 
for  our  government  to  charge  against  any  award  which  may  be 
recovered  a  very  considerable  portion  of  the  really  great  expense 
incurred  in  convening  and  maintaining  the  court.  Now,  of  course, 
it  is  a  good  thing  to  have  averted  war,  but  it  is  rather  hard  that  the 
private  party,  whose  claim  may  have  given  rise  to  the  contro- 
versy, should  be  called  upon  to  pay  the  bill. 

It  has  occurred  to  me  that  as  the  prevention  of  war  is  one  of 
the  prime  purposes  for  which  a  recent  great  donation  of  money 
has  been  made,  and  as  the  settlement  by  arbitration  of  even  so- 


DISCUSSION  99 

called  private  contentions  between  the  citizens  of  different 
countries  may  tend  to  avert  war,  possibly  the  trustees  of  that 
recently  established  fund  may  discover  good  ground  for  applying 
a  considerable  portion  of  its  income  to  the  lightening  of  this 
burden  of  expense. 

There  are  other  objections  of  a  practical  sort,  too  many,  it 
seems  to  me,  to  be  compressed  into  the  space  of  time  which, 
owing  to  the  amount  of  business  before  this  meeting,  has  been 
allotted  to  me.  All  that  I  can  say  in  conclusion  is  that  many 
of  the  objections  which  are  known  to  exist  to  the  Hague  tribunal 
as  at  present  constituted,  may  and  perhaps  will  be  eliminated 
by  the  proposed  plan  for  the  Judicial  Settlement  of  international 
disputes  for  which  this  Society  stands  sponsor. 

THE  CHAIRMAN  (MARBURG)  :  Is  there  any  one  who  would  like 
to  discuss  this  paper?  It  is  rather  helpful  to  have  people  come 
at  such  questions  from  their  own  standpoint. 

MRS.  BELVA  LOCKWOOD  :  Mr.  Chairman,  I  would  like  to  say  a 
word.  Mr.  McKenney  has  been  criticizing  the  Hague  tribunal, 
when  it  seems  to  me  he  might  have  found  against  the  courts 
in  this  country  as  many,  if  not  more,  objections  than  he  has 
found  against  this  Hague  tribunal.  That  court  is  hardly  yet  in 
good  running  order,  and  is  it  not  proper  to  assume  that  the  objec- 
tions to  some  of  its  methods  to  which  Mr.  McKenney  has  re- 
ferred will  soon  be  obviated? 

As  to  the  question  of  the  expense  to  the  litigants,  that  objec- 
tion is  not  peculiar  to  the  Hague  tribunal.  When  I  go  into  court 
and  try  a  case,  I  must  pay  expenses  when  I  am  done,  whether 
I  am  successful  or  whether  I  am  unsuccessful.  I  think  it  is  the 
rule  the  world  over  that  people  who  take  their  difficulties  to 
lawyers  always  have  to  pay. 

Mr.  McKenney  speaks  of  war  being  averted.  Why,  the 
smallest  war  would  cost  hundreds  of  times  as  much  as  the  amount 
which  he  complains  of  as  having  been  charged  an  individual. 


100  JUDICIAL   SETTLEMENT 

I  say  that  without  knowing  what  the  amount  was,  but  we  all 
know  the  enormous  cost  of  any  war.  I  cannot  see  that  Mr. 
McKenney's  argument  holds  water  at  all.  I  am  for  the  Hague 
Court  now  and  all  the  tune.  The  judicial  settlement  of  disputes 
is  the  only  rational  way  to  settle  difficulties  not  only  between 
individuals,  but  between  nations,  and  I  hope  this  tribunal  will 
become  the  great  arbiter,  the  juridical  court  for  the  people  of 
the  world,  and  I  believe  it  will.  I  have  worked  for  that  object 
in  the  past  and  I  shall  work  for  it  in  the  future.  I  believe  I 
drafted  the  first  bill  ever  presented  to  the  Congress  of  the  United 
States,  asking  our  people  to  work  for  an  arbitral  court,  and  I  have 
hi  my  possession  the  letter  written  by  me  to  the  member  who  in- 
troduced the  bill.  With  all  due  deference  to  Mr.  McKenney,  I 
do  not  think  his  objections  are  sufficient  to  be  considered  as  any 
reason  whatever  why  the  Hague  tribunal  should  not  be  continued, 
and  I  think  we  should  give  that  tribunal  our  hearty  support. 

THE  CHAIRMAN  (MARBURG)  :  Our  critics  are  often  our  best 
friends,  and  I  am  sure  those  who  are  criticizing  the  present  per- 
manent court  of  arbitration  are  its  sincere  friends.  They  look 
forward  to  its  continuing  to  be  of  great  usefulness.  They  simply 
want  to  set  up  beside  -it  another  institution  which  will  do  what 
that  cannot  do. 

It  gives  me  great  pleasure  to  present  to  you  now  Mr.  Alpheus 
Henry  Snow,  a  distinguished  writer  on  colonization  and  depend- 
encies who  will  address  us  on 

THE  DEVELOPMENT  OF  THE  AMERICAN  DOCTRINE 
OF  JURISDICTION  OF  COURTS  OVER  STATES 

ALPHEUS  HENRY  SNOW 

By  the  Articles  of  Confederation,  the  American  States  made  the 
United  States,  in  Congress  assembled,  "the  last  resort  on  appeal" 
in  all  disputes  between  them,  and  authorized  the  Congress,  upon 


SNOW  101 

the  complaint  of  any  State  against  another,  to  institute  a  special 
tribunal,  according  to  a  method  prescribed  by  the  Articles,  for 
the  final  decision  of  the  dispute.  By  the  Constitution,  the  people 
of  the  United  States  and  the  States  of  the  Union  established  a 
Supreme  Court  of  the  United  States  and  made  it  a  tribunal  for 
the  judicial  settlement  of  all  interstate  and  international  disputes 
in  which  the  United  States  or  the  States  of  the  Union  might  be 
involved  with  each  other  or  with  foreign  states,  and  which  were 
capable  of  being  settled  by  the  exercise  of  "the  judicial  power" 
of  the  United  States.  By  these  two  documents,  therefore,  it  was 
recognized  as  an  American  doctrine  that  disputes  between  states 
may,  under  some  circumstances,  properly  be  settled  according  to 
the  decision  of  courts — or,  to  put  it  inversely,  that  courts  may, 
under  some  circumstances,  properly  have  jurisdiction  over  states. 

Now  that  the  states  of  the  society  of  nations  are  on  the  point  of 
establishing  a  Court  of  Arbitral  Justice  for  the  settlement  of  such 
international  disputes  as  are  capable  of  judicial  determination,  it 
becomes  interesting  to  discover  the  process  by  which  the  Supreme 
Court  of  the  United  States  has  been  evolved.  It  may  be  that  by 
tracing  this  line  of  development,  some  light  may  be  thrown  upon 
the  questions  which  are  now  presenting  themselves  in  regard  to 
the  proposed  international  court. 

The  institutions  of  a  people  are  in  part  the  expressions  of  their 
political,  social  and  economic  beliefs,  and  in  part  the  result  of 
experiments  made  by  them  and  of  improvements  upon  institu- 
tions which  have  stood  the  test  of  experiment.  It  is  necessary, 
therefore,  in  this  inquiry,  to  examine  first  the  nature  of  the  poli- 
tical, social  and  economic  beliefs  of  the  founders  of  the  American 
commonwealth;  then,  to  investigate  their  experience  in  the  work- 
ing of  those  institutions  set  over  them  by  England  as  their  mother 
country,  or  established  by  themselves,  which  bore  an  analogy 
to  the  Supreme  Court  of  modern  tunes,  and  to  ascertain  the  pro- 
cess by  which  these  early  institutions  were  improved  and  adapted 
to  the  changing  environment. 


102  JUDICIAL  SETTLEMENT 

In  our  search  for  the  political  doctrine  held  by  the  American 
colonists  which  may  reasonably  be  thought  to  have  manifested 
itself  in  our  Supreme  Court,  we  perhaps  may  find  a  clue  in  a 
remark  made  by  Grotius  in  his  Three  Books  of  Peace  and  War- 
Describing  the  power  which  a  state  ought  to  exercise  over  its 
colonies  (lib.  i,  cap.  iii,  sec.  21),  he  says  that  while  the  Latins 
described  the  power  of  the  mother  city  or  state  by  the  word 
imperare,  to  command,  and  regarded  it  as  having  the  imperium, 
or  empire,  over  the  colonies,  the  Greeks  "more  modestly"  de- 
scribed the  power  of  the  mother  city  by  the  word  Too-crew,  to  dis- 
pose or  set  in  order,  and  regarded  the  mother  city  as  having  the 
jiyefiovia  that  is,  the  hegemony,  leadership  in  judgment  or  su- 
preme jurisdiction.  The  American  colonists  regarded  England, 
then"  mother  country,  as  the  Greek  colonists  regarded  their  mother 
city.  They  recognized  that  England  had  a  leadership  in  judgment 
and  hence  a  supreme  jurisdiction  over  the  Colonies  for  the  purpose 
of  disposing  and  setting  in  order  their  affairs  to  the  extent  that 
might  be  necessary  for  the  common  defence  and  for  the  general 
welfare,  but  they  denied  its  power  to  command.  They  insisted 
that  the  execution  of  the  judgments  of  the  mother  country  was 
of  right  in  the  Colonies  and  that,  in  extreme  cases,  where  its 
decisions  were  palpably  unjust,  the  Colonies  might  refuse  to 
adopt  or  execute  them. 

The  American  colonists  went  farther,  and  denied  to  their  own 
governments  and  to  all  governments  the  power  of  absolute 
command,  holding  that  government  in  every  form  is  essentially 
leadership  in  judgment.  To  place  it  beyond  doubt  that  their 
governments  did  not  have  the  imperium  of  the  Latins,  but  only 
the  hegemony  of  the  Greeks,  they  adopted  the  custom  of  binding 
their  governments  by  written  constitutions  regarded  as  emanating 
from  the  people,  limiting  the  powers  which  the  government  was 
authorized  to  exercise  and  placing  it  in  the  position  of  an  author- 
ized agent  of  the  people.  Their  representative  assemblies  they 
called,  in  some  cases,  general  courts;  and  they  held  the  members 


SNOW  103 

of  such  assemblies  responsible  as  members  of  a  supreme  tribunal. 
Every  act  of  government  they  regarded  as  an  act  of  judgment, 
and  they  considered  that  the  persons  appointed  to  govern  were 
but  the  leaders  in  the  judgment.  They  held  that  the  final 
judgment  rested  in  the  whole  people,  who  confirmed  by  their 
acquiescence  and  conformity  those  acts  of  government  which 
by  common  consent  were  regarded  as  necessary  and  just,  and 
who  ultimately  nullified  such  acts  of  government  as  by  common 
consent  were  regarded  as  unnecessary  and  unjust.  With  regard 
to  every  governmental  act,  the  question  in  their  minds  was, 
whether  the  act  in  question  appealed  to  their  reasons  and  con- 
sciences as  necessary  and  just  under  the  circumstances.  If  the 
general  consensus  was  that  the  act  of  government  was  necessary 
and  just,  the  people  executed  it  as  a  matter  of  choice  and  free 
will.  Governmental  commands  and  prohibitions,  in  their  view, 
thus  derived  their  force  from  the  judgments  on  which  they  were 
based  and  on  the  general  acquiescence  in  the  judgment  as  neces- 
sary and  just. 

The  social  ideas  of  the  American  colonists  were  based  upon 
Christianity.  The  people  were  thus  at  the  same  time  individ- 
ualists and  humanitarians  and  sought  to  find  the  middle  ground 
between  selfishness  and  altruism.  They  believed  in  the  equality 
of  all  men  before  God  by  reason  of  the  common  and  equal  crea- 
tion of  all  men  by  God,  and  held  to  the  conception  of  a  law  of 
nature  imposed  by  God,  which  is  supreme  over  all  human 
action  and  relationship  and  to  which  all  men,  states  and  peoples 
are  equally  subject.  This  law  of  nature  was  to  their  mind 
composed  of  those  principles  of  natural  justice,  based  primarily 
on  the  equal  right  and  duty  of  self-protection  and  self-preser- 
vation, which  are  implanted  in  man  by  God,  and  which  are  in 
part  revealed  and  in  part  discoverable  by  the  enlightened  reason 
and  conscience.  All  governmental  acts  they  believed  were  to 
be  judged  by  the  people  according  to  this  supreme  law. 

The  economic  ideas  of  the  American  colonists  were  similar 


104  JUDICIAL   SETTLEMENT 

to  their  social  ideas.  As  individualists  they  opposed  monopoly 
and  caste  and  believed  in  the  fundamental  rights  of  self-protec- 
tion and  self-preservation,  called  the  rights  of  life,  liberty  and 
property.  As  humanitarians  they  believed  that  trade,  commerce 
and  intercourse  ought  to  be  free  and  universal,  limited  only  by  the 
necessities  of  self-protection  and  self-preservation. 

Holding  these  views,  the  American  colonists  regarded  the  Col- 
onies as  commonwealths  and  free  states,  and  at  the  same  time 
thought  it  not  inconsistent  that  these  free  states  and  common- 
wealths should  be  parts  of  the  English  empire  and  the  English 
commonwealth.  They  willingly  assented  to  those  provisions 
of  the  Colonial  charters  which  required  that  the  governmental 
acts  of  the  Colonies  should  be  consistent  and  harmonious  with 
the  governmental  acts  of  England.  The  effect  of  this  was,  to 
make  the  law  of  England  a  supreme  law  of  the  Colonies,  govern- 
ing not  only  the  people  of  the  Colonies  but  the  Colonies  themselves. 
But  to  this  law  they  could  not  yield  absolute  supremacy  con- 
sistently with  their  conception  of  a  supreme  and  universal  law 
of  nature  emanating  from  God.  They  therefore  regarded  the 
English  empire  and  commonwealth,  and  each  of  the  constitu- 
ent states,  as  subject  in  the  first  instance  to  the  law  of  England 
as  a  supreme  law,  but  as  also  subject  in  the  last  resort  to  the  law 
of  nature.  The  English  and  Colonial  courts  and  governments 
also  recognized  the  law  of  nations,  composed  of  the  principles 
of  international  conduct  and  relationship  agreed  upon  by  inde- 
pendent states  and  manifested  in  treaties  or  in  their  political 
action,  though  even  this  law  the  American  colonists  regarded  as 
subordinate  to  the  law  of  nature.  Disputes  between  the  states 
forming  the  English  empire  and  commonwealth,  involving  ques- 
tions capable  of  judicial  determination,  were  thus  to  be  decided  by 
courts — the  local  law  of  the  Colony  being  applied  in  cases  where 
it  was  solely  applicable,  and  the  law  of  England  or  the  law  of 
nations  also  being  applied  where  applicable,  the  one  or  the  other 
being  supreme  according  to  the  nature  of  the  case;  the  law  of  nature 


SNOW  105 

governing  all  cases  not  covered  by  the  other  laws  and  being 
supreme  over  all. 

Realizing,  however,  that  there  were  disputes  between  states, 
as  between  individuals,  involving  dignity  or  vital  interests,  which 
were  not  susceptible  of  decision  by  the  cold  and  dispassionate 
methods  of  investigation  and  adjudication,  and  which  could  only  be 
settled  by  methods  taking  into  account  passions,  sentiments  and 
prejudices,  they  believed  that  the  settlement  of  disputes  between 
states  composing  the  English  empire  and  commonweal  thought  to  be 
in  the  charge  of  a  specially  constituted  tribunal  fitted  by  training 
to  act  judicially  where  the  judicial  method  was  applicable  and  to 
act  diplomatically  where  the  judicial  method  was  inapplicable. 
Yielding  reasonable  deference  to  England  as  the  mother  country, 
they  were  willing  to  entrust  her  with  the  duty  of  establishing 
and  maintaining  such  a  tribunal.  During  the  Colonial  periodj 
the  people  of  the  Colonies  consented  that  the  arbitration  or  adju- 
dication of  disputes  between  the  Colonies  or  between  one  or  more 
of  the  Colonies  and  England  should  be  conducted  before  tribunals 
in  England  established  by  the  English  government  for  that  pur- 
pose. When  by  the  Revolution  there  ceased  to  be  a  mother 
country  to  act  as  arbitrator  and  judge  between  the  American 
States,  it  was  inevitable  that  their  political,  social  and  economic 
beliefs  should  find  expression  in  a  system  of  their  own  for  carry- 
ing on  such  arbitrations  and  adjudications. 

Having  thus  attempted  to  form  some  conclusion  concerning 
the  development  of  the  doctrine  of  jurisdiction  of  courts  over 
States  as  a  matter  of  political,  social  and  economic  belief,  it  be- 
comes necessary  to  examine  the  experience  of  the  Americans  in 
the  working  of  institutions  which  culminated  in  the  establish- 
ment by  them  of  the  Supreme  Court  of  the  United  States. 

It  may  be  objected  that  such  an  investigation  is  without  prac- 
tical value  as  bearing  upon  the  institution  of  the  proposed  Court 
of  Arbitral  Justice,  because  the  institutions  of  which  the  Ameri- 
cans had  experience  were  those  which  existed  under  a  political 


106  JUDICIAL  SETTLEMENT 

union  formed  by  England  and  the  Colonies  and  held  together  by 
the  power  of  England.  Such  institutions,  it  may  be  urged,  have 
no  resemblance  to  or  bearing  upon  the  institutions  which  a  body 
of  independent  states  would  find  it  for  their  interests  to  form. 

It  must  indeed  be  admitted  that  the  tribunals  in  England 
which  settled  the  disputes  of  the  American  Colonies  were  the  pro- 
duct of  English  statesmanship  supported  by  English  force,  and 
that  these  institutions  were  accepted  by  the  Colonies  and  in  no 
sense  created  by  them.  At  the  same  time,  it  is  to  be  remembered 
that  all  unions  or  combinations  of  individuals  or  states  arise 
out  of  the  same  circumstances  and  have  the  same  objects — they 
are  for  the  common  defence  and  for  the  general  welfare.  It  mat- 
ters little  from  what  standpoint  each  of  the  parties  enters  upon 
the  negotiations.  Whether  they  start  from  a  position  of  assumed 
equality  or  from  a  position  of  assumed  inequality,  the  union  or 
combination  will  tend  to  perfect  itself  by  conforming  to  the  facts 
as  they  exist,  and  the  institutions  of  the  union  or  combination 
will  tend  to  take  the  form  which  best  suits  the  needs  of  all  the 
parties.  In  spite,  therefore,  of  the  fact  that  the  Supreme  Court 
of  the  United  States  had  its  origin  in  the  institutions  of  the 
English  empire  and  commonwealth  and  the  British  empire,  and 
exists  today  as  an  institution  of  the  American  Union,  it  by  no 
means  follows  that  American  experience  of  these  institutions  may 
not  be  of  value  at  this  time  to  the  states  of  the  society  of  nations. 

In  the  English  realm  and  empire,  from  the  earliest  times 
until  the  Revolution  of  1641,  the  tribunal,  known  as  "the  King 
(or  the  Queen)  in  Council "  played  the  most  important  part.  From 
1660  until  about  1770,  it  had  a  settled  and  peculiar  jurisdiction, 
as  opposed  both  to  the  jurisdiction  of  the  body  known  as  the 
Parliament,  established  in  1295,  composed  of  King,  Lords  and 
Commons,  and  to  that  of  the  ordinary  courts  of  justice  of  the 
realm.  The  King  in  Council  was  legally  the  King  advised  by  his 
Privy  Council.  This  council  was  composed  of  men  selected  by  the 
King  for  their  social  influence  and  their  expertness  in  statesman- 


SNOW  107 

ship,  law  and  economics.  By  their  advice  the  King  made  treaties 
with  independent  states,  exercised  jurisdiction  over  annexed 
countries,  and  carried  on  the  government  of  the  realm  accord- 
ing to  customary  principles  and  according  to  Parliamentary  acts. 

During  the  reign  of  Elizabeth,  the  government  of  England 
was  carried  on  almost  entirely  by  the  Queen  in  Council.  Few 
Parliaments  were  held,  and  the  action  of  those  which  were  held 
was  largely  devoted  to  registering  the  decrees  of  the  Queen  hi 
Council  and  levying  taxes  to  be  expended  as  the  Queen  in  Council 
might  direct. 

An  examination  of  the  charters  of  discovery  granted  by  Queen 
Elizabeth  to  Sir  Humphry  Gilbert  and  Sir  Walter  Raleigh  shows 
that  it  was  her  purpose,  had  colonies  been  established  under  these 
charters,  to  govern  them  by  herself,  advised  by  her  Privy  Council. 
Judging  from  the  system  pursued  by  Elizabeth  and  her  prede- 
cessors in  the  case  of  Ireland  and  Jersey,  there  would  have  been 
a  Governor  and  Privy  Council  in  each  of  the  American  colonies, 
subordinate  to  and  in  correspondence  with  the  Queen  in  Council. 
The  bond  of  union  between  England  and  the  colonies  would  have 
been  considered  to  arise  from  the  common  allegience  of  all 
English-born  people,  and  their  descendants,  to  the  person  of 
the  reigning  monarch.  Under  this  system  the  colonies  and  their 
citizens  would  have  been  subject  to  the  Queen  in  Council  as  a 
supreme  tribunal. 

The  system  of  government  by  councils  which  prevailed  in 
England  during  Elizabeth's  time  was  a  favorite  system  at  that 
time  throughout  Europe.  The  feudal  system  was  on  the  point 
of  giving  place  to  the  representative  system,  but  during  the  last 
half  of  the  sixteenth  century  there  was  a  reaction  towards  the 
feudal  system.  Spain,  the  most  successful  colonizing  power  of 
that  day,  was  governed  by  councils.  Its  relations  with  its  colo- 
nies were  in  charge  of  a  specially  selected  and  distinguished  body 
of  men  who  formed  the  Council  of  the  Indies,  which  was  assisted 
by  a  subordinate  Council  of  Trade.  A  similar  system  prevailed 


108  JUDICIAL  SETTLEMENT 

in  Portugal.  In  the  empires  of  Venice  and  Genoa,  then  passing 
into  decay,  the  relations  with  the  oversea  colonies  and  trading- 
posts  had  been  in  charge  of  a  central  tribunal. 

When  James  VI  of  Scotland  came  to  the  throne  of  England  as 
James  I  in  1603,  after  the  death  of  Elizabeth,  a  new  situation  was 
beginning  to  be  formed  on  the  Continent  of  Europe.  Spain  and 
Portugal,  claiming  the  whole  world  outside  of  Europe  under 
Papal  bull,  were  declining,  and  the  northern  powers  of  the  Con- 
tinent under  the  lead  of  Henry  IV,  King  of  France,  were  trying 
to  arrange  a  European  Concert  to  regulate  Europe  and  all  the 
rest  of  the  world.  The  movement  was  ostensibly  aimed  against 
Spain  and  Austria,  but  it  was  evident  that  any  Concert  of  the 
Continental  powers  must  inevitably  in  the  long  run  be  turned 
against  England.  It  became  necessary  for  England,  whose 
trade  was  already  almost  strangled  by  hostile  regulations  of  Con- 
tinental powers,  to  gain  colonies  for  itself  in  America  and  to 
hold  them  against  any  possible  Continental  coalition.  A  sys- 
tematic plan  of  colonization  was  therefore  entered  upon  in  which 
the  great  lawyers  of  England,  among  them  Coke,  Bacon  and  Pop- 
ham,  participated. 

Just  as  these  plans  were  being  prepared,  an  event  occurred  hi 
England  which,  as  the  Colonial  documents  and  literature  show, 
had  a  profound  influence  on  the  people  of  the  American  Colonies. 
This  was  the  settlement  of  a  dispute  between  England  and  Scot- 
and  according  to  a  decision  made  by  the  Judges  of  England. 
When  King  James  became  King  of  both  countries,  the  question 
arose,  what  rights  the  citizens  of  the  two  states  should  have 
against  each  other  while  their  peoples  were  thus  united  through 
the  person  of  the  King.  Commissioners  were  appointed  by  the 
legislatures  of  the  two  states,  and  an  agreement  was  reached 
except  upon  the  question  of  what  rights  the  citizens  of  Scotland 
should  have  in  England,  and  vice  versa.  In  1604,  the  English 
House  of  Commons  brought  the  negotiations  to  a  temporary 
close  by  insisting  that  the  rights  of  the  Scots  in  England  should 


SNOW 

be  such  only  as  they  were  entitled  to  according  to  the  principles 
of  law  .and  established  precedents.  The  House  of  Lords  insisted 
upon  an  arrangement  for  naturalizing  in  England  by  statute  all 
persons  born  in  Scotland  after  the  Union;  it  being  agreed  that 
all  persons  born  before  the  Union  were  aliens,  who  could  be  natur- 
alized only  by  the  methods  applicable  to  aliens.  A  great  hearing 
of  the  question  was  had,  which  was  given  the  form  of  a  Conference 
between  the  Lords  and  Commons  of  England,  to  which  all  the 
judges  of  England  were  summoned  as  advisers  of  the  Conference. 
The  effect  of  the  whole  arrangement  was  to  constitute  the  judges 
of  England  an  Extraordinary  Tribunal  to  determine  judicially 
the  dispute  between  England  and  Scotland.  At  the  hearing 
Sir  Francis  Bacon  acted  as  leading  counsel,  and  prominent  law- 
yers of  the  House  of  Commons  argued  the  case  from  the  stand- 
point of  the  civil  law,  "the  law  of  nations  and  of  reason,"  the 
history  of  nations,  and  the  common  law.  All  the  cases  in  the 
English  year  books  and  reports  arising  out  of  England's  connec- 
tion with  the  principalities  and  duchies  in  France  and  the  Low 
Countries,  with  Ireland,  and  with  Jersey  and  Guernsey,  were 
examined.  The  case  is  reported  in  the  State  Trials  under 
the  title  of  the  Case  of  the  Postnati.  In  an  opinion  in  which 
the  principles  of  law  and  the  precedents  were  fully  discussed,  the 
judges  arrived  at  the  unanimous  conclusion  that  Scots  born  after 
the  accession  of  James  to  the  throne  of  England  were  entitled 
in  England  to  full  civil  rights  of  person  and  property,  but  had  no 
political  rights;  and  that  Scots  born  before  the  Union  were  aliens 
in  England.  Though  the  judges  in  their  opinions  necessarily 
based  themselves  on  English  law  and  precedents,  the  investi- 
gation of  counsel  and  the  reasoning  of  the  judges  took  so  wide  a 
range  that  the  principles  laid  down  were  really  those  of  universal 
law,  and  the  effect  of  the  decision  was  to  recognize  a  supreme 
common  law  governing  the  relations  between  England  and  all 
the  countries  politically  connected  with  her.  The  decision  of 
the  judges  was  accepted  by  the  people  of  England  and  Scotland, 


110  JUDICIAL  SETTLEMENT 

and  the  dispute  was  thus  judicially  settled.  A  test  case  called 
Calvin's  Case,  involving  the  same  questions  as  the  Case  of  the 
Postnati,  was  brought  two  years  later  to  the  Court  of  King's 
Bench,  and  was  heard  before  all  the  judges,  the  decision  being 
the  same.  By  reason  of  the  nature  of  the  points  decided  in  the 
Case  of  the  Postnati,  and  the  manner  of  the  decision,  and  by  rea- 
son of  the  fact  that  this  decision  did  in  fact  settle  the  difficulty 
between  England  and  Scotland  the  Case  of  the  Postnati  had  the 
dignity  of  an  international  adjudication  and  illustrated  the  pos- 
sibility of  courts  having  jurisdiction  over  states. 

Incidentally,  the  judges  in  their  opinions  in  these  cases, 
stated  the  principles  which  in  the  past  had  governed  the  relation- 
ship between  England  and  the  countries  subordinately  connected 
with  her;  thereby  in  fact  establishing  the  principles  upon  which 
the  relationship  between  England  and  the  American  Colonies 
was  to  rest.  The  King  in  Council  was  recognized  as  having  a 
superintending  legislative  power  and  jurisdiction  over  all  coun- 
tries subordinately  connected  with  England,  to  be  exercised  by 
orders  in  council  or  by  writs.  The  Parliament  was  recognized 
as  having  a  superintending  legislative  power  over  such  coun- 
tries above  that  exercised  by  the  King  in  Council,  this  power 
being  exercised  by  means  of  Acts  of  Parliament  in  which  the  Col- 
onies were  specially  named.  A  special  Act  relating  to  a  country 
outside  the  realm  of  England — which  was  necessarily  not  repre- 
sented in  the  Parliament — could  be  intelligently  framed  only 
after  investigation  of  the  facts  and  hearing  of  the  par  ties  concerned. 
In  passing  such  special  Acts,  therefore,  the  Parliament,  if  it  acted 
reasonably  and  conscientiously,  necessarily  acted  both  as  a  tri- 
bunal having  jurisdiction  over  such  countries  and  as  a  legis- 
lature. 

When,  therefore,  the  English  colonization  of  America  began, 
in  1606,  not  only  were  the  minds  of  the  people  of  England  habit- 
uated to  the  idea  of  government  through  councils  of  experts 
sitting  as  tribunals  as  well  as  legislatures,  but  they  had  just  had 


SNOW  III 

an  object  lesson  in  international  adjudication.  The  English  colo- 
nists of  America  had  moreover  special  cause  to  be  familiar  with 
the  Case  of  the  Postnati  and  Calvin's  Case,  for  the  principles 
laid  down  in  them  in  fact  formed  the  unwritten  constitution 
governing  the  relations  between  England  and  the  American 
Colonies.  A  permanent  tribunal  in  England  exercising  juris- 
diction in  disputes  between  England  and  the  Colonies,  or  between 
one  Colony  and  another,  determining  their  rights  against  each 
other  according  to  sound  political,  legal,  social  and  economic 
principles,  was  probably  regarded  by  all  as  an  appropriate  means 
for  maintaining  proper  relations  between  them.  It  was  of  course 
impossible  at  that  time  for  the  Colonies  to  be  united  with  England 
by  representation  in  Parliament,  and  such  a  tribunal  was  the 
only  practicable  bond  of  union  between  them.  Such  a  tribunal 
was  not  inconsistent  with  a  system  of  local  self-government  in 
the  Colonies;  indeed  it  depended  for  its  success  upon  a  recogni. 
tion  of  their  self-governing  statehood,  and  of  their  power  and  duty 
to  execute  the  judgments  of  the  tribunal  in  so  far  as  they  appealed 
to  the  reason  and  conscience  of  the  people  of  the  Colonies  as 
reasonably  necessary  and  just. 

By  the  Charter  of  1606,  James  I  claimed  all  North  America 
between  34°  and  45°, — that  is,  all  the  region  between  what  is 
now  South  Carolina  and  what  is  now  Canada, — calling  it  "Vir- 
ginia"; and  divided  it  into  two  districts  overlapping  between 
38°  and  41°,  one  of  which  was  probably  intended  to  be  a  northern 
and  the  other  a  southern  viceroyalty, — the  middle  line  falling 
very  close  to  what  was  later  on  "Mason  and  Dixon's  Line" 
between  the  Northern  and  Southern  States.  In  each  of  the  grand 
divisions  provision  was  made  for  an  English  Colony  with  speci- 
fied boundaries.  The  local  government  of  each  Colony  was 
placed  in  charge  of  a  Council,  called  the  "  Council  of  the  First 
(or  Second)  Colony,"  to  be  appointed  by,  and  to  act  under  the 
instructions  of  the  King  in  Council.  The  Charter  also  provided 
for  a  Council  in  England,  to  be  appointed  by  the  King  in  Council, 


112  JUDICIAL   SETTLEMENT 

called  the  "Council  of  Virginia."  The  ultimate  and  supreme 
power  over  the  Colonies  was  recognized  as  vested  in  the  whole 
State  and  Government  of  England,  and  this  power  was  to  be 
executed,  so  far  as  the  Charter  shows,  by  the  King  in  Council. 
The  "Council  of  Virginia"  was  given  jurisdiction,  subject  to 
final  decision  of  the  King  in  Council,  to  determine  disputes 
between  the  Colonies,  and  advise  the  King  concerning  the  general 
social  and  economic  situation;  the  Charter  providing  that  this 
Council  was  to  have  the  "superior  managing  and  direction  only 
of  and  for  all  matters  that  may  concern  the  government,  as  well 
of  the  several  Colonies,  as  of  and  for  any  other  part  or  place 
within  the  aforesaid  precincts  of  four  and  thirty  and  five  and  forty 
degrees." 

The  likeness  between  the  system  of  government  established 
by  this  Charter,  and  the  Spanish  system,  is  apparent.  The 
Council  of  Virginia  corresponded  to  the  Council  of  the  Indies 
and  the  Council  of  each  Colony  to  the  local  Audiencia  in  each  of 
the  Spanish  colonies  which  conducted  the  local  government. 
The  Charter  made  no  provision  for  representative  Assemblies  in 
the  Colonies — in  this  respect  also  conforming  to  the  Spanish  sys- 
tem. Some  basis  is  to  be  found  for  a  belief  that  this  Charter 
shows  Spanish  influence  in  the  fact  that  England  and  Spain 
were  then  in  close  relationship  under  the  Treaty  of  1604,  and  that 
Spanish  ideas  were  prevalent  at  the  English  Court.  As,  however, 
the  Charter  was  drawn  by  the  most  eminent  English  lawyers, 
and  as  the  English  scheme  of  colonization  of  America  was  strongly, 
opposed  by  Spain,  it  seems  more  reasonable  to  believe  that  the 
Council  of  Virginia  was  a  development  of  the  ideas  underlying 
the  English  Privy  Council  than  that  it  was  based  on  any  foreign 
model. 

The  Charter  of  1606  proved  ineffective,  because  it  did  not  induce 
sufficient  emigration.  There  was  no  precious  metal  to  produce 
quick  returns  to  the  colonists.  They  could  only  hope  for  the 
slow  returns  from  agriculture  and  trade;  and  this  necessitated 


SNOW  113 

the  use  of  large  amounts  of  capital  and  systematic  operations 
for  colonizing  the  country  and  protecting  and  supplying  the 
colonists  until  they  could  become  self-supporting.  In  1609,  the 
"First  Colony"  referred  to  in  the  Charter  of  1606  was  organized 
as  a  colonizing  and  trading  joint -stock  corporation  called 
the  Virginia  Company,  which  was  authorized  to  colonize  and 
govern  the  region  at  present  included  within  Virginia  and  the 
country  to  the  westward.  The  Company  was  given  the  privilege 
of  the  general  and  local  government  of  the  country  granted,  and 
the  monopoly  of  its  trade.  The  governing  board  of  the  Company 
in  England  was  constituted  by  the  Charter  the  "Council  for 
Virginia"  and  was  subordinate  to  the  King  in  Council.  By  an 
amendment  in  1611,  the  adventurers  were  allowed  to  sit  with  the 
Councillors,  and  the  meetings  were  called  "Courts"  of  the  Com- 
pany. Four  "Great  and  General  Courts"  in  each  year  were 
required  to  be  held  "for  the  handling,  ordering  and  disposing  of 
matters  and  affairs  of  greater  weight  and  importance,  and  such  as 
shall  or  may  in  any  sort,  concern  the  weal  public  and  general 
good  of  the  said  Company  and  Plantation." 

This  Charter  was  unsatisfactory.  By  the  people  of  England 
it  was  objected  to  as  giving  to  the  Company  a  monopoly;  the 
King  regarded  it  as  too  democratic  and  republican,  and  as  likely 
to  lead  to  too  radical  ideas  in  the  Colonies;  the  nobility  found 
fault  with  it  because  it  allowed  merchants  to  sit  hi  one  of  the 
King's  councils. 

The  admission  of  merchants  to  membership  in  this  council 
was,  it  would  seem,  due  to  the  economic  necessities  of  the  situa- 
tion. The  opening  of  the  sea-route  to  India  and  America,  the 
closing  of  the  Mediterranean  to  the  Oriental  trade  by  the  Moham- 
medan invasion  of  what  is  now  Turkey,  the  consequent  ruin  of 
Venice,  and  the  decline  of  Spain  and  Portugal  through  extrava- 
gance and  bad  government,  had  made  the  English  Channel  the 
Mediterranean  of  the  world,  and  London,  as  the  most  secure 
port  on  the  Channel,  was  becoming  the  metropolis.  England 


114  JUDICIAL  SETTLEMENT 

required  a  permanent  economic  connection  with  America,  in 
order  that  raw  material  might  be  secured  and  an  increased  mar- 
ket for  English  manufactures  might  be  provided.  The  tribunal 
in  England  having  jurisdiction  over  the  relations  of  the  Ameri- 
can Colonies,  in  order  to  be  efficient,  had  to  be  so  organized 
as  to  be  able  to  cope  with  economic  as  well  as  with  social  and  polit- 
ical questions.  The  system  was  perfected  half  a  century  later 
by  the  institution  of  a  Council  of  Trade,  subordinate  to  the  King 
in  Council,  having  charge  of  these  economic  relations. 

Under  the  Charter  of  1609,  the  local  government  of  Virginia 
took  on  a  democratic  and  republican  aspect.  To  the  Governor 
and  Council  appointed  by  the  King  in  Council  was  added  in 
1621,  by  consent  of  the  King  in  Council,  a  representative  "House 
of  Burgesses,"  all  together  constituting  the  General  Assembly 
of  Virginia.  In  the  Ordinance  of  the  Company  establishing  this 
system  occurred  the  remarkable  provision  that  no  orders  of  the 
General  Courts  of  the  Company  should  bind  the  Colony  unless 
ratified  by  the  General  Assembly  of  Virginia, — a  provision 
which  left  to  the  General  Courts  of  the  Company  what  was 
essentially  a  power  of  adjudication,  and  gave  Virginia  the  power 
of  executing  the  judgments  of  the  Courts  of  the  Company  accord- 
ing as  these  judgments  were  approved  by  the  public  sentiment  of 
the  people  of  Virginia.  This  ordinance,  representing  as  it  did 
the  maximum  of  self-government  which  was  ever  granted  by 
England  to  any  of  the  Colonies,  was  regarded  by  all  the  Colonies 
as  a  fundamental  constitution  determining  the  relationship  not 
only  between  England  and  Virginia,  but  between  England  and  all 
the  Colonies. 

In  1620,  an  experiment  was  made  of  another  system,  resembling 
somewhat  that  of  the  Virginia  Company.  A  colonizing  and  trad- 
ing corporation  of  forty  members  with  power  of  self-perpetuation 
by  the  name  of  "Council  for  New  England,"  was  chartered  by 
James  I,  with  power  of  government  and  trade  monopoly  through- 
out North  America  from  40°  to  48°, — that  is,  approximately 


SNOW  115 

from  what  was  afterwards  "Mason  and  Dixon's  Line"  to  the 
mouth  of  the  St.  Lawrence.  The  meetings  of  the  Council  were 
described  in  the  Charter  as  "  Courts."  The  Company,  which  was 
at  the  same  time  a  "Council"  and  a  "Court,"  thus  constituted  a 
tribunal  in  England  having  jurisdiction,  subject  to  the  King  in 
Council,  of  the  colonies  to  be  formed  in  this  great  region.  As  a 
corporation  it  was  subject  to  have  its  charter  forfeited  for  cause 
by  quo  warranto  proceedings;  and  its  monopoly  made  it  vulner- 
able. The  opposition  of  Parliament  to  monopolies  was  so  great 
that  the  corporation  did  little  more  than  make  grants  of  land. 

Charles  I,  upon  coming  to  the  throne  in  1625,  abolished  the 
Virginia  Company,  and  took  Virginia  under  the  direct  govern- 
ment of  himself  advised  by  his  Privy  Council,  without  any  sub- 
ordinate council.  In  1628  he  granted  a  charter  to  the  Company 
of  Massachusetts  Bay,  empowering  it  to  colonize  the  region  sur- 
rounding what  is  now  the  City  of  Boston,  with  full  powers  of 
government  and  without  express  reservation  of  control  by  the 
King  in  Council  or  by  Parliament.  The  meetings  of  the  Company 
were  described  in  the  charter  as  "Courts,"  and  four  "Great 
and  General  Courts"  of  the  Company  were  to  be  held  in  each 
year.  It  was  not  specified  whether  the  Company  should  be 
located  in  England  or  in  Massachusetts  Bay. 

This  charter  was  based  upon  principles  of  government  incon- 
sistent with  the  Lathi  theory  of  government  held  by  Charles  I 
and  his  Privy  Council,  according  to  which  the  binding  force  of 
governmental  acts  was  derived  from  the  King's  command ;  and  it  so 
evidently  made  the  public  judgment  supreme  within  the  Colony, 
that  when  the  Company  removed  to  Massachusetts  Bay,  it  became 
specially  obnoxious  to  the  King  in  Council,  and  the  charge  was 
made  that  the  charter  was  obtained  "surreptitiously." 

In  1635,  the  Council  for  New  England  surrendered  its  charter 
and  the  King  created  a  special  commission  to  regulate  all  the 
English  Colonies  in  America  and  elsewhere,  composed  of  the 
highest  clerical  and  lay  officials  of  the  realm — William  Laud, 


Il6  JUDICIAL  SETTLEMENT 

Archbishop  of  Canterbury,  being  the  President.  This  commis- 
sion was  invested  with  full  powers,  and  it  seems  to  have  been 
responsible  only  to  the  King  in  person.  It  was  expressly  given 
power  to  determine  all  disputes  between  the  Colonies.  The  Let- 
ters Patent  read,  in  this  respect: 

"Farther,  be  it  known  that  we  constitute  you,  or  any  five  or 
more  of  you,  our  commissioners,  to  hear  and  determine,  accord- 
ing to  your  sound  discretions,  all  complaints  whatsoever,  whether 
against  the  Colonies  themselves,  or  their  Presidents  or  Govern- 
ors, either  at  the  instance  of  the  party  aggrieved,  or  upon  infor- 
mation concerning  injuries  done,  *  *  *  and  to  summon  the 
parties  before  you,  and  they  having  been  heard,  *  *  *  by 
themselves  or  by  their  attorneys,  to  extend  to  them  full  and 
complete  justice." 

This  tribunal  was  also  authorized  to  hear  and  determine  con- 
troversies between  the  Colonies  and  England,  their  powers  ex- 
tending to  the  revocation  of  "charters  surreptitiously  or  unduly 
obtained  or  prerogatives  granted  on  terms  prejudicial  to  the  rights 
of  the  Crown  or  of  foreign  princes;"  the  commission  being  required 
to  proceed  in  such  cases  "according  to  the  law  and  custom  of 
our  realm  of  England."  It  was  this  tribunal  which  directed 
that  a  quo  warranto  suit  be  brought  against  the  Massachusetts 
Bay  Colony  to  forfeit  its  charter,  on  the  ground  that  the  charter 
was  obtained  surreptitiously  and  unduly  and  that  it  was  not 
intended  to  authorize  the  whole  government  of  the  Colony  to 
be  removed  to  America. 

The  arbitrary  methods  of  Archbishop  Laud  led  the  Colonies  to 
distrust  the  commission  as  formed,  but  they  recognized  the  neces- 
sity of  a  reasonable  judicial  control  by  the  King  in  Council.  In 
1638,  the  General  Court  of  Massachusetts  Bay,  in  its  answer  to 
the  demand  of  the  commission  to  surrender  up  its  charter  for 
cancellation,  declared  that  Massachusetts  Bay  was  "ready  to 
yield  all  due  obedience  to  our  Sovereign  Lord  the  King's  Majesty, 
and  to  your  Lordships  under  him."  The  expression  "due  obe- 


SNOW  117 

dience"  or  "due  subjection"  was  often  used  in  the  Colonial  docu- 
ments as  describing  the  relation  of  the  Colonies  to  England,  to 
signify  that  they  regarded  themselves  as  subject  only  to  the 
power  of  England  duly  exercised,  — that  is,  exercised  to  the  extent 
needful  for  the  common  good.  They  regarded  themselves  as 
free  states  or  commonwealths,  and  based  their  subjection  to  the 
reasonable  jurisdiction  of  England  partly  on  their  consent,  partly 
on  the  economic  necessities  of  the  case,  and  partly  on  the  moral 
compulsion  growing  out  of  their  special  relationship  to  England 
and  their  general  relationship  with  the  rest  of  the  world. 

The  position  taken  by  the  General  Court  of  the  Massachusetts 
Bay  Colony  was  in  harmony  with  the  prevailing  sentiment  in 
England.  In  1640,  the  Parliament  by  an  Act  declared  and  "regu- 
lated" the  powers  of  the  King  in  Council  and  denned  its  juris- 
diction as  a  tribunal.  This  Act  provided: 

"That  neither  his  Majesty,  nor  his  Privy  Council,  have  or  ought 
to  have  any  jurisdiction,  power  or  authority,  by  English  bill, 
petition,  articles,  libel,  or  other  arbitrary  way,  to  examine  or 
draw  into  question,  determine  or  dispose  of  the  lands,  tenements, 
hereditaments,  goods  or  chattels  of  any  of  the  subjects  of  this 
kingdom;  but  that  the  same  ought  to  be  tried  and  determined 
hi  the  ordinary  courts  of  justice  and  by  the  ordinary  course  of 
law." 

The  effect  of  this  statute  was  to  differentiate  the  King  in  Council 
from  the  ordinary  courts  of  justice  of  the  realm  of  England  and 
to  make  the  King  in  Council  an  Extraordinary  Court  for  the  judi- 
cial settlement  of  disputes  arising  outside  of  the  realm  of  England 
but  within  the  English  empire.  In  the  exercise  of  this  extra- 
ordinary jurisdiction  it  acted  according  to  the  equity  of  the  laws 
of  England,  inasmuch  as  all  the  Colonial  charters  provided  that 
the  Colonial  law  should  be  not  inconsistent  with  the  law  of  Eng- 
land. 

In  1638,  the  people  of  the  towns  of  Windsor,  Hartford  and 
Wethersfield,  in  what  is  now  Connecticut,  without  any  charter 


Il8  JUDICIAL  SETTLEMENT 

from  England,  "associated  and  conjoined"  themselves  "as  one 
public  state  or  commonwealth."  In  their  articles  of  "combina- 
tion and  confederation,"  they  provided  for  two  "  General  Assem- 
blies or  Courts"  to  be  held  annually  and  to  be  composed  of 
deputies  of  the  towns.  The  whole  State  was  spoken  of  in  the 
articles  as  a  "Jurisdiction."  A  Governor  and  six  Assistants  were 
to  be  elected  and  were  to  have  power  "to  administer  justice 
according  to  the  laws  here  established,  and  for  want  thereof 
according  to  the  rule  of  the  word  of  God."  It  was  provided  that 
the  General  Court  should  be  "  for  the  making  of  laws  and  any  other 
public  occasion  which  concerns  the  good  of  the  Commonwealth," 
— a  power  sufficiently  broad  to  enable  the  General  Courts  to 
adjust  disputes  between  the  constituent  towns  and  to  make 
treaties  with  their  neighbor  "Commonwealths"  or  "Jurisdic- 
tions." 

In  the  Massachusetts  Bay  "Body  of  Statutes"  of  1641,  the 
"Commonwealth"  of  Massachusetts  Bay  was  spoken  of  as  a 
"Jurisdiction." 

In  1643,  when  England  was  distracted  by  the  civil  war,  the 
Colonies  of  Massachusetts  Bay,  New  Plymouth,  Connecticut 
and  New  Haven  found  themselves  in  a  position  where  they  were 
obliged  to  defend  themselves  from  external  attack  and  where 
they  were  at  the  same  time  in  danger  of  war  among  themselves 
unless  they  could  find  a  peaceful  way  of  settling  their  disputes. 
They  accordingly  entered  into  a  Confederation,  by  the  name 
of  "The  United  Colonies  of  New  England."  One  of  the  Articles 
of  Confederation  provided: 

"If  any  of  the  confederates  shall  hereafter  break  any  of  these 
present  articles,  or  be  any  other  way  injurious  to  any  of  the  other 
Jurisdictions,  such  breach  of  agreement,  or  injury,  shall  be  duly 
considered  and  ordered  by  the  Commissioners  for  the  other 
Jurisdictions,  that  both  peace  and  this  present  Confederation 
may  be  entirely  preserved  without  violation." 

Before  tribunals  organized  according  to  this  provision,  several 


SNOW  1 10 

a 

disputes  between  the  Colonies  regarding  boundaries  were  heard 
and  determined.  The  case  of  the  greatest  consequence  which 
came  before  these  tribunals,  however,  was  that  between  Massa- 
chusetts and  Connecticut  involving  the  right  of  Connecticut 
to  impose  duties  on  the  navigation  of  the  Connecticut  River,  in 
consideration  of  the  maintenance  by  Connecticut  of  a  fort  at  the 
mouth  of  the  river.  The  case  was  decided  in  favor  of  Connecticut 
and  was  twice  afterwards  argued  on  rehearings  asked  by  Massa- 
chusetts. Retaliation  by  Massachusetts  finally  resulted  in  a 
free  trade  system  among  the  Confederates. 

On  November  3rd,  1643,  three  months  after  the  New  England 
Confederation  was  formed,  the  Lords  and  Commons,  who  then 
constituted  the  legislature  of  England  under  a  provisional  gov- 
ernment practically  republican  in  form,  passed  an  ordinance 
establishing  a  new  commission  with  full  jurisdiction  over  all  the 
English  colonies.  The  Earl  of  Warwick  was  named  as  president 
of  the  commission,  and  Sir  Henry  Vane,  John  Pym,  and  Oliver 
Cromwell  were  among  the  members.  One  of  its  first  acts  was 
to  grant  a  charter  to  Providence  Plantations,  which  had  been 
excluded  from  the  Confederation  on  account  of  the  strong  indivi- 
dualistic doctrine  of  the  settlers  there.  In  this  charter  the  com- 
mission asserted  its  jurisdiction  to  determine  disputes  between 
the  Colonies  by  a  clause  which  read  : 

"Always  reserving  to  the  said  Earl  and  Commissioners,  and 
their  successors,  power  and  authority  to  dispose  the  general 
government  of  that,  as  it  stands  in  relation  to  the  rest  of  the  Plan- 
tations in  America,  as  they  shall  conceive,  from  time  to  time, 
most  conducive  to  the  general  good  of  the  [Plantations,  the  honor 
of  his  Majesty,  and  the  service  or  the  State." 

This  commission,  and  its  successor,  the  Committee  of  the  Council 
of  State  for  the  Plantations  established  when  the  English  Common- 
wealth was  instituted  in  1649,  permitted  the  United  Colonies 
of  New  England  to  operate  under  their  Articles  of  Confederation 
in  subordination  to  the  supreme  power  of  the  Commonwealth; 


120  JUDICIAL   SETTLEMENT 

and  the  Confederation  continued  in  full  vigor  until  the  restora- 
tion of  Charles  II  in  1660. 

Under  Cromwell,  provision  was  made  for  determining  the  econ- 
omic as  well  as  the  political  relations  of  the  Colonies  by  the  insti- 
tution of  a  Council  of  Trade,  which  was  subordinate  to  the  Com- 
mittee of  the  Council  of  State  for  the  Plantations.  The  Council 
of  Trade  acted  as  a  tribunal  of  first  instance  or  a  master  in  chan- 
cery, deciding  routine  matters  and  reserving  the  more  important 
questions  for  the  decision  of  the  Committee  of  the  Council  of 
State  for  the  Plantations  and  later  of  the  Lord  Protector  in 
Council.  From  the  beginning  the  Colonies  had  had  the  practice 
of  sending  commissioners  to  England  or  employing  agents  there 
to  represent  their  interests  in  special  emergencies  before  the  King 
in  Council.  Massachusetts  Bay,  in  1637,  had  sent  agents  to 
represent  it  before  the  Laud  Commission.  This  now  began  to 
become  a  settled  custom,  but  it  was  fifty  years  after  this  tune 
before  the  system  came  into  full  operation. 

The  passage  of  the  Navigation  Act  in  1651,  by  the  Parliament 
of  the  Commonwealth,  brought  up  in  acute  form  the  question 
how  the  relations  between  England  and  the  Colonies,  and  between 
the  Colonies  individually,  ought  to  be  determined.  The  object 
of  this  Act  was  to  restrict  the  trade  of  the  Colonies  to  the  English 
market,  and  to  place  the  whole  carrying  trade  hi  the  hands  of 
English  ship-owners,  thus  giving  England  the  monopoly  of  the 
trade  of  the  Colonies.  This  action  was  acquiesced  in  by  some  of 
the  Colonies,  as  a  reasonable  regulation  of  then*  foreign  and  inter- 
colonial trade  necessitated  by  the  circumstances.  Others  regarded 
it  as  evidencing  the  adoption  by  England  of  a  theory  of  abso- 
lute power  over  the  Colonies.  It  appeared  to  them  to  show  that 
England  had  accepted  the  "Colonial  Pact"  theory  invented  by 
Richelieu  a  few  years  before,  by  which  the  claim  of  France  ta 
absolute  power  over  her  colonies  had  been  concealed  under  the 
pretext  that  there  existed  a  Fundamental  Compact  between 
France  and  her  colonies  by  the  terms  of  which  the  colonies  were 


SNOW  121 

assumed  to  have  granted  to  France  a  monopoly  of  their  trade  in 
consideration  of  her  assumed  promise  to  protect  them.  On  this 
theory,  there  was  no  occasion  for  a  tribunal  in  England  having 
jurisdiction  over  the  Colonies.  They  had  no  rights  against  Eng- 
land, and  were  bound  implicitly  to  obey  the  edicts  of  England. 
All  the  Colonies  moreover  objected  to  Acts  of  Parliament  which 
purported  to  affect  them,  because  it  was  evident  that  Parliament 
was  not  organized  as  a  tribunal  but  as  a  representative  of  terri- 
torial districts  in  England.  Upon  the  passage  of  the  Navigation 
Act  in  1651,  Virginia  revolted  from  the  Commonwealth,  claiming 
that  the  Act  was  a  violation  of  the  principle  that  the  subjection 
of  the  American  Colonies  was  to  a  proper  tribunal  in  England  and 
that  the  Colonies  were  subject  to  no  legislatures  except  their  own. 
Commissioners  were  sent  by  the  Commonwealth  Parliament  to 
Virginia,  who,  under  instructions,  succeeded  in  settling  the  con- 
troversy by  agreeing  to  Articles  of  Capitulation  in  which  it  was 
declared  that  Virginia  (and,  by  necessary  implication,  all  the 
other  Colonies)  owed  only  "due  obedience  and  subjection  to 
the  Commonwealth  of  England,"  and  that  the  "submission  and 
subscription"  of  Virginia  was  a  "voluntary  act"  on  her  part. 

This  great  constitutional  settlement  between  the  Commonwealth 
of  England  and  the  American  Colonies  made  the  validity  of 
the  Navigation  Act  and  of  all  other  governmental  acts  of  England 
relating  to  the  Colonies  depend  upon  whether  or  not  they  were 
reasonable  and  just  under  the  circumstances,  the  Colonies  having 
the  right,  at  least  in  extreme  cases,  to  determine  the  question  of 
reasonableness  and  justness  as  well  as  England.  In  case  of  dead- 
lock, there  was  no  solution  except  through  agreement  in  confer- 
ence, or  through  arbitration,  or  through  judicial  decision  by  the 
King  in  Council,  or  through  war.  The  relations  between  England 
and  the  Colonies  and  between  the  Colonies  individually,  under 
this  settlement,  bore  a  close  resemblance  to  those  of  states  which 
are  subject  to  the  principles  of  international  law. 


122  JUDICIAL   SETTLEMENT 

With  the  restoration  of  Charles  II  in  1660  and  the  cessation  of 
the  domestic  troubles  of  England,  a  systematic  reorganization 
of  the  American  Colonies  was  begun.  As  the  system  was  devel- 
oped during  the  century  succeeding  his  accession,  three  general 
objects  were  pursued — the  establishing  of  direct  and  close  com- 
munication between  each  Colony  and  England;  the  directing  of 
the  trade  of  each  towards  England  as  the  common  market;  and 
the  maintaining  of  a  permanent  political  connection  between 
all  parts  of  the  empire.  In  pursuance  of  the  first  object  the 
Dutch  and  Swedes  were  dislodged  from  the  regions  about  the 
Hudson  and  Delaware  Rivers,  and  the  whole  sea  coast  from  what 
is  now  the  southern  boundary  of  Georgia  to  what  is  now  the 
northeastern  boundary  of  Maine  was  divided  so  that  ultimately 
there  were  formed  twelve  Colonies,  each  having  a  good  harbor 
from  which  ships  could  sail  direct  to  England.  In  pursuance  of 
the  second  object,  the  Navigation  Act  was  continued  and  more 
stringent  provisions  were  made  for  carrying  it  into  effect,  it 
being  the  general  understanding,  at  least  in  the  Colonies,  that  this 
Act  was  an  exceptional  measure  necessitated  by  the  circumstances 
and  dependent  for  its  validity  upon  its  reasonableness  and 
necessity  and  upon  their  consent  or  acquiescence.  In  pursu- 
ance of  the  third  object,  the  general  jurisdiction  of  the  relations 
of  the  Colonies  was  placed  in  charge  of  the  King  advised  by  a 
standing  committee  of  the  Privy  Council  known  as  the 
Committee  of  the  Privy  Council  for  Plantation  Affairs,  which 
was  itself  assisted  by  a  subordinate  judicial  and  administrative 
body  known  as  the  Board  of  Commissioners  for  Trade  and  Plan- 
tations. This  subordinate  tribunal  was  appointed  by  the  King 
in  Council,  and  was  specially  concerned  with  economic  questions, 
though  it  appears  to  have  had  a  general  jurisdiction.  Impor- 
tant matters,  particularly  those  involving  diplomatic  and  political 
action  with  reference  to  the  Colonies,  were  referred  by  this  sub- 
ordinate council  to  the  Committee  of  the  Privy  Council  for 
Plantation  Affairs. 


SNOW  123 

During  the  last  years  of  the  reign  of  Charles  II  and  during  the 
reign  of  James  II  this  system  of  managing  the  relations  with  the 
Colonies  was  rendered  unpopular  in  America  by  the  arbitrary 
methods  pursued,  and  particularly  by  the  attempts  of  these 
monarchs  to  centralize  the  system  by  the  abolition  of  the  corpor- 
ate and  proprietary  charters  of  the  Colonies  and  by  the  substitu- 
tion for  them  of  charters  converting  each  Colony  into  a  royal 
province,  ruled  by  a  Governor  and  Council  appointed  by  the  King. 
It  seems  probable  that  it  was  intended  by  them  to  form  the 
Colonies  into  two  viceroyalties — a  northen  and  a  southern — 
composed  of  provinces,  the  dividing  line  being  that  of  40°.  When 
this  plan  was  abandoned,  various  schemes  for  uniting  the  Colo- 
nies under  a  Governor  General  and  a  General  Council  appointed 
by  the  King  in  Council  were  agitated.  William  Penn,  who  in 
1693  nad  published  a  plan  for  uniting  Europe  under  a  general 
government,  proposed  in  1697  to  the  English  Government  a 
plan  for  uniting  the  American  continental  colonies  under  a  gener- 
al government,  subject  to  the  supremacy  of  England.  All  plans 
for  a  union  however  failed,  and  until  shortly  before  the  American 
Revolution,  the  King  in  Council  was  the  bond  of  union  between 
England  and  the  Colonies  and  between  each  Colony  and  all  the 
others. 

In  1700,  the  Commissioners  for  Trade  and  Plantations  recom- 
mended that  the  practice  of  having  agents  in  London  be  adopted 
by  all  the  Colonies,  and  most  of  them  thereafter  adopted  the  prac- 
tice. The  Colony  agents  occupied  a  relationship  to  Parliament 
somewhat  similar  to  that  of  a  delegate  without  power  to  speak 
or  vote,  or  even  to  sit  in  the  body,  yet  recognized  by  committees 
and  in  some  cases  called  to  the  bar  of  the  House  of  Commons  to 
present  the  views  of  the  Colonies.  As  respects  the  King  in  Council, 
their  relationship  was  semi-diplomatic.  As  respects  the  Commis- 
sioners for  Trade  and  Plantations,  their  position  was  essentially 
that  of  attorneys  in  England  for  the  Colonies.  Thus  the  whole 
governmental  establishment  of  Great  Britain  stood  in  the  rela- 


124  JUDICIAL   SETTLEMENT 

tion  of  a  supreme  tribunal  for  the  Colonies  rather  than  a  supreme 
legislature.  Even  Acts  of  Parliament  were  regarded  as  deriving 
their  binding  force  from  the  acquiescence  of  the  Colonies  in  them 
as  necessary  and  just  regulations  for  the  common  defence  and 
general  welfare. 

The  merger  of  England  and  Scotland  hi  1707,  by  which  was 
formed  the  United  Kingdom  of  Great  Britain,  brought  various 
new  ideas  and  influences  to  bear  upon  the  relations  between  the 
Colonies  and  the  mother  country;  but  under  the  British  empire 
the  system  whereby  the  King  in  Council  acted  as  the  bond  of 
union  was  not  essentially  changed.  During  the  decade  between 
1730  and  1740,  the  system  probably  obtained  its  highest  degree 
of  perfection  and  its  greatest  success. 

From  about  the  year  1700  until  shortly  before  the  Revolution, 
the  King  in  Council  was  both  the  supreme  political  tribunal  of 
the  empire  and  the  supreme  court  of  appeals  of  the  empire. 
Besides  the  political  committee  already  mentioned — the  Committee 
of  the  Privy  Council  for  Plantation  Affairs — there  existed  a 
judicial  committee  known  as  the  Committee  for  Appeals.  This 
latter  committee  had  jurisdiction  of  appeals  from  the  supreme 
courts  of  the  Colonies.  As  appears  from  the  statement  of  Lord 
Mansfield  in  the  great  case  of  Campbell  v.  Hall,  decided  in  the 
King's  Bench  in  1774,  it  was  the  law  that  the  King  in  Council 
could  do  nothing  as  respects  the  Colonies  which  was  "contrary 
to  fundamental  principles;"  from  which  it  appears  that  it  was 
the  duty  of  the  King  in  Council,  in  exercising  jurisdiction  over 
the  Colonies,  to  recognize  and  regard,  both  in  its  political  and  its 
judicial  action,  the  fundamental  rights  of  the  individual  to  life 
liberty  and  property.  Disputes  between  the  Colonies,  or  in  which  a 
Colony  or  Great  Britain  was  involved,  were  within  the  jurisdiction 
of  the  King  advised  by  the  Committee  of  the  Privy  Council  for 
Plantation  Affairs,  who  arranged  the  method  of  trial  in  each 

case. 
Several  cases  involving  the  boundaries  between  colonies  were 


SNOW  125 

settled  between  1 700  and  1 7  70  by  the  political  committee  of  the  King 
in  Council.  One  of  these  was  that  which  arose  in  1736  between 
Maryland  and  Pennsylvania  in  regard  to  a  part  of  the  region 
which  is  now  Delaware.  After  much  trouble  between  the  border 
populations  and  many  ineffectual  attempts  of  the  local  govern- 
ments to  adjust  the  matter,  the  dispute  came  to  the  King  in 
Council  in  1750.  As  it  appeared  that  the  controversy  arose 
out  of  an  agreement  between  the  Lords  Proprietors,  who  were 
within  the  jurisdiction  of  the  English  courts  by  reason  of  their 
residence  in  England,  the  King  in  Council  acquiesced  in  a  plan 
whereby  a  suit  in  chancery  for  specific  performance  of  the  agree- 
ment and  for  the  settlement  of  boundaries  and  the  quieting  of 
title  was  to  be  brought  by  the  Proprietor  of  Pennsylvania  against 
the  Proprietor  of  Maryland  in  the  English  court  of  chancery,  the 
right  to  jurisdiction  over  the  region  in  question  to  be  settled  by 
order  in  council  according  to  the  decision.  The  suit,  by  the  title 
of  Perm  v.  Lord  Baltimore,  was  accordingly  brought,  and  was 
heard  and  adjudicated  by  Lord  Chancellor  Hardwicke.  Upon 
report  of  the  decision  of  the  court  of  chancery  to  the  King  in 
Council,  an  order  in  council  was  made  in  conformity  with  the 
decision,  establishing  the  right  of  Pennsylvania  to  jurisdiction 
over  the  region  in  dispute. 

In  granting  a  motion  of  the  defendant  to  make  the  Attorney 
General  a  party,  Lord  Hardwicke  said  (Ridgeway,  332): 

"This  is  a  question  between  feudatory  Lords,  Proprietors  of 

Provinces,  and  concerning  not  only  their  private  interest,  but 

tthe  rights  of  government  and  the  rights  of  private  persons. 

.     The  disputes  of  private  persons  in  the  Provinces  are 

determined  in  the  courts  of  the  Province,  on  which  a  writ  of 

error  by  way  of  appeal  lies  before  the  King  in  Council.    Therefore 

questions  between  Proprietary  Lords,  in  analogy  to  the  ancient 

law  of  the  Marches,  must  be  determined  before  the  King  in  Council. 

"If  .  .  .  Proprietary  Lords  are  to  alter  the  bound;  of 
their  Provinces  without  the  privity  and  consent  of  the  Crown  by 


126  JUDICIAL   SETTLEMENT 

whom  alone  such  powers  are  vested,  directed  and  disposed,  con- 
sider the  inconveniences  that  must  follow;  this  is  no  less  than 
transferring  lands  into  different  jurisdictions,  legislations,  etc.; 
you  subject  the  people  to  different  government,  different  assem- 
blies, laws,  courts,  taxes,  etc.,  to  which  they  never  assented  by 
their  delegates." 

Delivering  the  opinion  on  final  hearing  (i  Vesey  Sr.,  444), 
Lord  Hardwicke  said: 

"This  cause  [is]  for  the  determination  of  the  right  and  bounda- 
ries of  two  great  Provincial  Governments  and  three  Counties, 
of  a  nature  worthy  the  judicature  of  a  Roman  Senate  rather  than 
of  a  single  judge;  and  my  consolation  is,  that  if  I  should  err  in  my 
judgment,  there  is  a  judicature  equal  in  dignity  to  a  Roman  Sen- 
ate that  will  correct  it . 

"It  is  certain  that  the  original  jurisdiction  in  cases  of  this  kind 
relating  to  boundaries  between  Provinces,  the  dominion  and 
proprietary  government,  is  in  the  King  and  Council;  and  it  is 
rightly  compared  to  the  cases  of  the  ancient  Commotes  and  Lord- 
ships Marches  in  Wales;  in  which  if  a  dispute  is  between  private 
parties  it  must  be  tried  in  the  Commotes  or  Lordships,  but  in 
those  disputes  where  neither  had  jurisdiction  over  the  other,  it 
must  be  tried  by  the  King  and  Council;  and  the  King  is  to  judge, 
though  he  might  be  a  party;  this  question  often  arising  between 
the  Crown  and  one  Lord  Proprietor  of  a  Province  in  America;  so 
in  the  case  of  the  Marches  it  must  be  determined  in  the  King's 
court,  who  is  never  considered  as  partial  in  these  cases;  it  being 
the  judgment  of  his  judges  in  [the  King's  Bench]  and  chancery.* 
So  where  before  the  King  in  Council  the  King  is  to  judge,  and  is  no 
more  to  be  presumed  partial  in  one  case  than  in  another." 

Another  case  of  disputed  boundaries  which  came  before  the 
King  hi  Council  for  settlement  was  that  of  New  Hampshire  against 
Massachusetts.  There  being  hi  this  case  no  Lords  Proprietors, 
of  whose  persons  the  English  courts  might  have  jurisdiction,  and 
no  agreement — the  case  arising  under  the  charters  of  the  Colo- 
nies— the  King  in  Council  ordered  a  reference  of  the  case  to  a 


SNOW  127 

commission  in  America  composed  of  twenty  persons,  who  were 
to  be  the  five  eldest  councillors  of  the  Colonies  of  New  York, 
New  Jersey,  Nova  Scotia,  and  Rhode  Island,  any  five  being  a 
quorum,  and  their  decision  being  reviewable  by  the  King  in  Coun- 
cil. The  Massachusetts  Assembly  wished  the  reference  to  be  to 
"wise  disinterested  persons"  to  be  chosen  equally  by  or  in  behalf 
of  the  parties,  those  in  behalf  of  Massachusetts  "to  be  chosen 
by  the  Assembly  of  that  Province  out  of  the  neighboring  govern- 
ments;" but  this  request  was  denied  and  the  commissioners 
were  named  by  order  in  council. 

About  the  year  1 755,  the  system  began  to  break  down.  In  part 
this  was  no  doubt  due  to  the  recrudescence  of  autocratic  and 
absolutist  ideas  throughout  the  European  world.  In  part  it  was 
probably  also  due  to  the  necessities  of  international  trade.  The 
close  and  continuous  contact  of  British  traders  and  government 
officials  with  the  peoples  of  the  Orient  and  the  tropics  who  under- 
stood no  governmental  power  which  was  not  absolute,  had  led 
the  British  government  to  claim  and  assert  absolute  power  over 
these  peoples;  and  it  doubtless  appeared  to  British  statesmen  that 
to  recognize  the  American  Colonies  as  subject  only  to  a  jurisdic- 
tion on  the  part  of  Great  Britain  was  inconsistent  with  the  exer- 
cise of  the  absolute  power  which  it  seemed  necessary  to  assert  in 
dealing  with  Oriental  and  tropical  peoples.  However  this  may  be, 
Great  Britain  about  the  year  1755  began  to  advance  the  claim 
that  it  had  absolute  power  throughout  the  empire,  with  the  right 
to  monopolize  the  trade  of  all  the  subordinate  parts  and  to  tax 
them  for  the  general  defence  and  welfare ;  the  excuse  for  the  claim 
of  absolute  power  being  the  assumed  duty  of  Great  Britain  to 
protect  all  parts  of  the  empire.  This  system,  called  in  France, 
as  has  been  said,  the  system  of  le  Pacte  Colonial,  was  in  England 
called  "the  Mercantile  System." 

The  war  between  Great  Britain  and  France  for  the  ten  years 
from  1753  to  1763,  which  was  largely  fought  on  American  soil 
and  in  which  British  and  American  soldiers  served  side  by  side, 


128  JUDICIAL   SETTLEMENT 

delayed  and  concealed  the  carrying  out  of  the  new  policy.  The 
British  and  Americans  fraternized  and  good  feeling  reigned.  The 
acquisition  of  Canada  by  Great  Britain  as  the  result  of  the  war, 
however,  brought  matters  to  a  head.  British  America,  instead 
of  consisting  of  a  row  of  seaboard  colonies  inhabited  by  British 
settlers  with  direct  communication  from  each  by  sea  to  Great 
Britain,  became  a  great  region  into  which,  through  the  St.  Law- 
rence and  the  Mississippi,  French  and  Spanish  influences  had 
penetrated,  and  containing  a  great  body  of  uncivilized  aboriginal 
inhabitants.  At  one  stroke,  the  old  system  of  government  was 
made  impossible,  and  a  new  situation  created  which,  as  it  seemed 
to  British  statesmen  at  least,  could  be  met  only  by  the  exercise 
of  absolute  power. 

Immediately  a  system  of  absolutism  was  put  in  force.  By 
edict  of  the  King  in  Council  in  1763,  the  western  bounds  of  the 
old  Colonies  were  limited  to  the  Allegheny  Mountains,  and  the 
whole  of  Canada  (which  included  the  Northwest  Territory) 
placed  under  the  government  of  the  Crown.  In  1764,  the  Colo- 
nies were  taxed  by  Act  of  Parliament  for  the  general  purposes  of 
the  empire,  both  internally  by  a  Stamp  Act  and  externally  by 
tariff  duties  on  goods  imported  into  the  Colonies.  When  the 
Stamp  Act  was  repealed,  Great  Britain  by  a  Declaratory  Act  of 
Parliament  asserted  its  absolute  power  in  the  empire.  By  this 
Act  it  was  declared  that  the  Parliament  of  Great  Britain  "had, 
hath  and  of  right  ought  to  have  full  power  and  authority  to  make 
laws  and  statutes  of  sufficient  force  and  validity  to  bind  the  colo- 
nies and  people  of  America,  subjects  of  the  Crown  of  Great  Brit- 
ain, in  all  cases  whatsoever." 

The  Americans  stood  for  the  old  system.  They  were  willing 
to  recognize  Great  Britain  as  having  jurisdiction  over  the  Colo- 
nies as  free  states,  reserving  their  right  of  judgment,  at  least  in 
extreme  cases,  for  the  protection  of  their  honor  and  dignity  and 
for  their  self-preservation.  They  acknowledged  the  supremacy 
of  Great  Britain  in  reasonably  and  justly  regulating  the  common 


SNOW  129 

affairs  of  the  states  of  the  empire,  particularly  in  regulating  the 
intercolonial  commerce  and  the  foreign  commerce  of  the  empire 
and  of  all  its  constituent  states.  They  considered  that  this  juris- 
diction ought  to  be  exercised  by  a  properly  constituted  tribunal 
in  Great  Britain  of  which  the  King  should  be  the  head,  and  they 
were  even  willing  to  conform  to  Acts  of  Parliament  passed  in  the 
reasonable  exercise  of  this  jurisdiction;  but  they  would  not  accept 
even  a  theoretical  claim  of  absolute  power  over  them,  however 
benevolent  might  be  the  despotism. 

The  issue  raised  by  the  Stamp  Act,  the  Declaratory  Act,  and 
the  Tea  Act,  was  whether  Great  Britain  had  legally  unlimited 
power  over  the  Colonies  as  their  supreme  absolute  legislature  or 
whether  it  had  a  legally  limited  power — that  is,  a  jurisdiction — 
over  them  as  their  supreme  tribunal  and  supreme  executive 
legislature.  The  Americans  at  first  tried  to  find  a  legal  limita- 
tion of  the  powers  of  Great  Britain  in  the  Colonial  charters  and 
in  the  British  Constitution,  but  failed  to  make  out  a  complete 
case.  The  charters  were  acts  of  the  British  Crown  and  recog- 
nized the  power  of  Parliament  without  mentioning  conditions  or 
limitations,  and  the  only  doctrine  of  the  British  Constitution 
which  could  be  applied  was  that  which  asserted  the  injustice  of 
taxation  without  representation — a  doctrine  which  had  in  fact 
no  application,  because  the  Americans  refused  to  be  represented 
in  a  Parliament  three  thousand  miles  away  and  the  British  re- 
fused to  allow  such  a  representation. 

Burke  declared  that  the  British  empire  of  that  day  could  not 
be  constituted  on  the  basis  that  Great  Britain  was  essentially  the 
supreme  tribunal  of  the  empire.  No  peace  in  the  British  empire 
was  possible,  he  asserted,  in  his  Speech  on  Conciliation,  which  was 
to  "depend  upon  the  juridical  determination  of  perplexing  ques- 
tiens,  or  the  precise  marking  of  the  shadowy  boundaries  of  a 
complex  government."  Great  Britain,  or  Great  Britain  and  the 
American  colonies  integrated  in  a  common  representative  Parlia- 
ment, he  asserted  in  his  speech  on  American  Taxation,  must  of 
necessity  exercise  absolute  power  in  the  empire. 


130  JUDICIAL  SETTLEMENT 

"The  Parliament  of  Great  Britain,"  he  said,  "sits  at  the  head 
of  her  extensive  empire  in  two  capacities:  One  as  the  local  legis- 
lature of  this  island,  providing  for  all  things  at  home  immediately 
and  by  no  other  instrument  than  the  executive  power.  The  other, 
and  I  think  her  nobler  capacity,  is  what  I  call  her  imperial  char- 
acter, in  which,  as  from  the  throne  of  Heaven,  she  superintends 
all  the  several  inferior  legislatures,  and  guides  and  controls  them 
all  without  annihilating  any  .  .  .  .  It  is  necessary  to 
coerce  the  negligent,  to  restrain  the  violent,  and  to  aid  the  weak 
and  deficient,  by  the  overruling  plentitude  of  her  power.  She  is 
never  to  intrude  into  the  place  of  others,  whilst  they  are  equal 
to  the  common  duties  of  their  institution.  But  in  order  to  enable 
Parliament  to  answer  all  these  duties  of  provident  and  benefi- 
cent superintendence,  her  powers  must  be  boundless.  Such,  sir, 
is  my  idea  of  the  Constitution  of  the  British  empire  as  distin- 
guished from  the  Constitution  of  Britain." 

Burke's  Speech  on  American  Taxation  closed  the  issue  between 
Great  Britain  and  America.  From  that  moment  the  Conti- 
nental Congress  realized  that  they  were  called  upon  to  decide 
a  single  momentous  question — for  Burke's  plan  of  integrating 
Great  Britain  and  the  Colonies  in  a  common  representative 
Parliament  was  recognized  as  wholly  impracticable — which  was, 
whether  the  American  Colonies  should  remain  a  part  of  the  Brit- 
ish empire  on  the  understanding  that  Great  Britain's  power  in 
the  empire  should  thereafter  be  a  power  to  command  instead  of 
a  power  to  lead  the  colonies  in  judgment,  or  whether  they  should 
declare  themselves  independent  states  and  organize  a  political 
union  independent  of  Great  Britain  and  the  British  empire,  in 
which  their  political  ideas  should  be  applied.  If  they  took  the 
latter  course,  it  was  necessary  to  state  reasons  which  would 
appeal  to  the  civilized  world  why  Great  Britain  should  not  exer- 
cise absolute  power  in  the  empire,  for  the  doctrine  of  Great 
Britain  was  the  accepted  doctrine  of  Europe.  It  was  useless 
for  such  a  purpose  to  talk  of  rights  under  the  Colonial  charters 


SNOW  131 

or  under  the  British  Constitution.  It  was  necessary  for  them  to 
base  themselves  on  universal  and  fundamental  principles  and  to 
commit  the  American  States  forever  to  the  principles  announced. 

The  Continental  Congress  was  equal  to  the  emergency.  By 
the  Declaration  of  Independence  the  American  Colonies,  as  free, 
independent  and  united  states,  denied  the  claim  of  Great  Brit- 
ain to  exercise  absolute  power  in  the  British  empire  by  asserting 
as  a  universal  doctrine  that  supreme  power  in  civilized  society 
is  limited  by  "the  laws  of  nature  and  of  nature's  God,"  and  that 
the  function  of  all  governments  is  to  exercise  jurisdiction  under 
mis  law  for  the  purpose  of  "securing"  to  each  individual  those 
"unalienable  rights"  with  which  all  men  are  endowed  by  their 
Creator  for  their  self-protection  and  self-preservation — called 
in  the  Declaration  the  rights  of  "life,  liberty  and  the  pursuit  of 
happiness" — and  to  which  all  are  equally  entitled  by  reason  of 
the  creation  of  all  men  by  the  common  Creator.  The  binding 
force  of  all  acts  of  government  was  held  to  arise  from  the  exercise 
of  this  jurisdiction  by  the  government  and  from  the  acquies- 
cence of  the  governed,  as  beings  endowed  with  reason  and  con- 
science, in  the  necessary  and  just  judgments  of  the  government, 
made  for  the  purpose  of  securing  the  fundamental  rights  of  the 
individual. 

The  Declaration  of  Independence  was  also  a  Declaration  of 
Union.  By  laying  down  these  principles  of  government,  it  had 
the  negative  effect  of  eliminating  Great  Britain  as  the  supreme 
government  of  the  Colonies;  by  asserting  the  union  of  the  American 
States  to  support  these  principles,  it  had  the  affirmative  effect 
to  commit  the  individual  States  and  the  United  States  to  the  prin- 
ciples of  government  which  it  declared. 

Accepting  the  principle  that  the  supreme  power  of  government 
is  the  power  to  judge,  it  follows  from  the  fact  that  each  state 
must  necessarily  have  relations  with  its  own  citizens  and  with 
persons  and  states  external  to  itself,  that  if  a  state  assumes  to 
finally  determine  these  relations,  it  acts  as  a  judge  in  its  own  cause. 


132  JUDICIAL  SETTLEMENT 

By  the  Declaration  of  Independence,  the  American  Union  acted 
as  a  judge  in  its  own  cause  in  declaring  the  political  connection 
between  Great  Britain  and  the  Colonies  to  have  been  dissolved 
by  the  acts  of  Great  Britain.  The  Americans  based  their  judg- 
ment on  the  ground  that  the  action  of  Great  Britain  was  in  vio- 
lation of  the  fundamental  rights  of  the  individual.  Recogniz- 
ing, however,  the  danger  to  the  peace  of  the  world  from  states 
acting  as  judges  in  their  own  causes,  they  declared,  hi  the  Decla- 
ration, that  whenever  states  so  act,  "a  decent  respect  to  the 
opinions  of  mankind  requires  that  they  should  declare  the  causes 
which  impel  them." 

Before  the  Revolution,  the  American  Colonies,  though  they 
regarded  themselves  as  free  states  or  commonwealths,  were  wil- 
ling to  have  the  disputes  between  themselves  and  with  the 
mother  country  settled  by  the  King  in  Council,  though  that  was 
a  tribunal  of  the  mother  country  and  was  open  to  the  objec- 
tion that  it  was  a  judge  in  its  own  cause.  Because  this  tribunal 
was  composed  of  men  trained  in  political,  social  and  economic 
judgment, and  was  headed  by  the  King, who  was  by  his  office  bound 
to  be  impartial,  they  accepted  and  executed  its  adjudications. 

Burke,  in  his  Speech  on  Conciliation,  said: 

"We  are, indeed,  hi  all  disputes  with  the  Colonies,  by  the  neces- 
sity of  things,  the  judge.  But  I  confess  that  the  character  of 
judge  in  my  own  cause  is  a  thing  that  frightens  me.  Instead  of 
filling  me  with  pride,  I  am  exceedingly  humbled  by  it.  I  cannot 
proceed  with  a  stern,  assured,  judicial  confidence,  until  I  find 
myself  in  something  more  like  a  judicial  character.  I  must 
have  these  hesitations  as  long  as  I  am  compelled  to  recollect 
that,  in  my  little  reading  upon  such  contests  as  these,  the  sense 
of  mankind  has  at  least  as  often  decided  against  the  superior  as 
the  subordinate  power." 

The  humility  which  Burke  regarded  as  necessary  in  one  who 
is  called  upon  to  be  a  judge  in  his  own  cause  would  seem  to  be  as 
likely  to  create  a  bias  in  him  favorable  to  his  adversary  as  pride 


SNOW  133 

would  create  in  favor  of  himself.  The  only  reasonable  means 
by  which  bias  can  be  avoided  by  individuals,  peoples  or  states, 
whether  the  judgment  be  required  to  be  given  in  one's  own  cause 
or  in  the  cause  of  others,  would  seem  to  be  training  and  education 
in  judgment,  and  an  appreciation  of  the  truth  which  Burke  stated, 
that  every  judgment  will  ultimately  be  reviewed  by  "the  sense 
of  mankind,"  which  will  "as  often  decide  against  the  superior 
as  the  subordinate  power." 

Upon  the  promulgation  of  the  Declaration  of  Independence 
the  Congress  regarded  itself  as  the  successor  of  the  King  in  Coun- 
cil. Until  the  Articles  of  Confederation  were  adopted,  it  exer- 
cised the  powers  which  had  been  exercised  by  the  King  in  Council 
over  the  Colonies  previous  to  the  Declaration.  By  the  Articles 
of  Confederation,  these  powers  were  reduced  to  writing  and  given 
the  sanction  of  a  mutual  agreement  of  the  States.  As  the  King 
in  Council  had  been  recognized  as  "the  last  resort,  on  appeal," 
in  disputes  between  the  Colonies,  the  Articles  of  Confederation 
made  the  Congress  a  tribunal  of  the  same  kind,  for  the  same  pur- 
pose, and  authorized  it  to  act,  as  the  King  in  Council  had  done,  by 
means  of  a  tribunal  instituted  in  each  case  under  its  auspices. 

In  the  Constitution,  the  people  of  the  United  States  and  the 
States  of  the  Union  divided  between  the  Congress,  the  President,  and 
the  Supreme  Court  the  powers  granted  by  the  Articles  of  Confed- 
eration to  the  Congress  of  the  Confederation,  and,  in  addition, 
granted  to  the  Congress  the  power  to  legislate  in  execution  of  the 
powers  granted  to  it.  They  also  granted  to  Congress  the  power 
to  regulate  by  legislation  the  interstate  and  foreign  commerce  of 
the  United  States.  To  the  Supreme  Court  naturally  fell  the 
function  of  determining  disputes  between  the  States  of  the  Union, 
and  the  remarkable  provision  was  added  that  foreign  states  might 
avail  themselves  of  the  jurisdiction  of  the  Supreme  Court  if  they 
had  disputes  with  States  of  the  Union.  This  provision  was  perhaps 
suggested  by  the  fact  that  the  American  Colonies,  though  hold- 
ing themselves  to  be  free  states  in  some  respects  foreign  to  Great 


134  JUDICIAL  SETTLEMENT 

Britain,  had  appeared  before  the  King  in  Council  as  plaintiffs 
and  defendants  and  had  found  it  an  impartial  tribunal,  though  it 
was  a  national  tribunal  of  Great  Britain.  The  Constitution  pre- 
served the  dignity  of  the  United  States  and  of  the  States  by  recog- 
nizing their  rights  to  act  as  judges  in  their  own  causes,  if  they  saw 
proper,  as  respects  claims  of  individuals  against  them.  Inas- 
much as  the  Supreme  Court  was  granted  only  the  "judicial 
power"  of  the  United  States,  its  jurisdiction  was,  it  would  seem, 
limited  to  the  decision  of  cases  which  are  of  such  a  nature  as  to  be 
capable  of  judicial  settlement.  Opportunity  was  provided -for 
settling  disputes  between  States  by  conference  or  arbitration  by 
the  provision  of  the  Constitution  which  recognized  the  right  of 
the  States  to  enter  into  treaties  or  contracts  with  each  other  by 
consent  of  the  Congress;  and  if  there  be  disputes  between  States 
of  the  Union  which  are  not  capable  of  judicial  settlement,  the 
States  involved  may,  it  would  seem,  establish  in  each  case  of 
dispute,  by  consent  of  Congress,  a  political  tribunal  for  the  settle- 
ment of  the  dispute. 

It  will  have  been  noticed,  in  the  course  of  this  inves  tigation  of 
the  process  of  the  development  of  the  American  doctrine  of 
jurisdiction  of  courts  over  states  that  the  fundamental  politi- 
cal belief  of  the  people  of  the  American  Colonies  and  of  the  United 
States  has  always  been  that  there  exists  a  supreme  universal  law 
governing  the  actions  of  states,  which  secures  to  each  individual 
his  right  of  self-protection  and  self-preservation,  and  that  the 
actions  of  states,  nations  and  empires,  are  void  so  far  as  they  are 
inconsistent  with  the  "securing"  of  these  "unalienable  rights." 
It  may  well  be  questioned  whether  it  is  not  through  this  concep- 
tion of  a  supreme  universal  law  that  there  exists  among  the  Amer- 
ican people  the  conception  of  a  constitutional  law  which  is  supreme 
over  states,  and  which  is. formed  by  agreement  of  the  people  and 
states  concerned  to  live  in  indissoluble  union.  If  this  constitu- 
tional law  has  its  sole  basis  in  agreement,  there  may  be  a  question 
as  to  its  supremacy  and  as  to  the  indissolubility  of  the  Union. 


SNOW  135 

An  agreement  which  is  supreme  over  those  who  agree  to  it,  and 
which  is  indissoluble,  is  a  self-contradiction.  Indissolubility 
of  an  agreement,  and  its  supremacy  over  those  who  agree  to  it, 
must  depend  upon  some  other  fact  than  the  agreement  of  the 
parties. 

The  theory  that  the  supremacy  of  the  Constitution  of  the  United 
States  arises  from  the  agreement  of  the  people  and  States  of  the 
United  States  was  invoked  in  the  Civil  War  as  a  reason  for  divid- 
ing the  Union  into  two  unions  when  the  people  of  the  two  sec- 
tions differed  in  their  opinions  concerning  the  nature  of  the  Con- 
stitution which  they  desired.  The  Union  was  upheld  by  those 
who  believed  in  the  existence  of  this  supreme  universal  law  refer- 
red to  in  the  Declaration  of  Independence  which  secures  "  the 
unalienable  rights"  of  all  men  to  "life,  liberty  and  the  pursuit 
of  happiness."  After  the  war,  the  Union  was  by  the  Fourteenth 
Amendment  again  expressly  committed  to  the  maintenance  of 
this  law ;  which  thus  became  the  real  bond  of  union  between  the 
people  and  states  of  the  Union.  By  that  amendment  and  the 
Fifth  Amendment,  the  Supreme  Court,  in  all  cases  brought  before 
it,  whether  by  or  against  states  or  persons,  was  authorized  to 
hold  invalid  any  act  of  any  legislative  body,  of  any  executive  or 
administrative  official,  or  of  any  court, — whether  of  a  state  or  of 
the  United  States, — which  deprives  any  person  of  his  life,  liberty 
or  property  without  due  process  of  law.  Under  this  authority 
the  Supreme  Court  exercises  a  jurisdiction  over  states  and  over 
the  United  States  similar  to  that  which  the  ordinary  courts  of 
justice  exercise  over  private  individuals.  It  is  a  logical  and  rea- 
sonable ground  for  maintaining  and  preserving  the  Union  that  the 
Union  is  the  ultimate  protector  and  preserver  of  this  law,  and  that 
in  order  to  perform  this  function  it  must  have  a  supremacy 
over  the  actions  of  constituent  states  to  the  extent  necessary  to 
enable  it  to  perform  the  function. 

The  question  therefore  arises,  whether  a  true  international 
court  can  ever  exist  until  the  nations  of  the  world  recognize  this 


136  JUDICIAL  SETTLEMENT 

supreme  universal  law.  Until  such  recognition  is  made,  the 
powers  of  any  body  of  men  called  an  international  court  can,  it 
would  seem,  never  rise  higher  than  a  mere  interpretation  of 
treaties;  for  conventions  are  but  joint  treaties,  and  supremacy  of 
treaties  or  conventions  over  national  law  by  agreement  can  of 
necessity  exist  only  so  long  as  the  agreement  exists,  unless  the 
agreement  is  itself  the  recognition  of  a  supreme  universal  law. 
A  court  to  interpret  treaties  would  be  useful,  but  it  would  be  an 
instrumentality  and  adjunct  of  the  states  creating  it,  and  would 
be  bound  by  their  agreements,  even  though  such  agreements 
might  palpably  deprive  individuals  of  life,  liberty  or  property 
without  due  process  of  law. 

If  it  be  the  fact,  as  American  beliefs  and  experience  would  seem 
to  indicate,  that  the  test  of  the  international  character  of  a 
court  is  not  whether  it  is  established  by  the  nations,  but  whether 
it  administers  a  law  which  is  supreme  over  the  nations,  there  is, 
it  would  seem,  no  objection  to  national  courts  having  jurisdic- 
tion to  settle  disputes  in  which  foreign  states  or  semi-foreign 
states  (now  called  colonies  or  dependencies)  are  involved  with 
citizens  or  states  of  the  nation.  Once  it  is  recognized  that  a 
national  court  may  administer  a  law  which  is  supreme  over  states, 
there  is  no  reason  why,  if  the  court  is  learned  and  impartial,  it 
should  not  be  resorted  to  by  foreign  states  for  the  judicial  set- 
tlement of  their  disputes.  So  also  federal  states  or  empires 
may  form  their  own  courts  for  the  administration  of  this  supreme 
law  as  between  their  own  constituent  states,  and  may  provide  for 
the  resort  of  foreign  states  to  these  tribunals. 

By  the  establishment  of  such  national,  federal  or  imperial 
courts  having  jurisdiction  over  states  by  administering  this  su- 
preme universal  law,  the  supreme  international  court —  when  one 
shall  be  established  by  agreement  of  the  nations —  will  be  safe- 
guarded, as  the  Supreme  Court  of  the  United  States  is  safeguarded 
by  the  fact  that  every  court  in  the  United  States  administers 
this  supreme  universal  law.  Under  such  an  arrangement  the 


SNOW  137 

Supreme  Court  becomes  "the  last  resort,  on  appeal,"  in  disputes 
between  states,  and  has  the  benefit  of  the  consideration  and  action 
of  other  courts. 

Such  an  international  supreme  court  would  of  course  need  to 
be  safeguarded  in  every  possible  way,  so  that  its  attention  might 
be  invoked  only  when  the  sifting  process  has  been  carried  to  the 
last  extremity  and  when  the  final  issues  have  been  determined 
and  the  material  facts  on  both  sides  have  been  stated  in  the  most 
succinct  form.  During  the  Colonial  period,  England  and  Great 
Britain  found  it  necessary  to  have  the  King  in  Council  assisted  by 
a  subordinate  council  to  act  as  master  in  chancery  or  referee,  and 
to  investigate  social  and  economic  questions.  It  was  also  found 
necessary  that  the  King  in  Council  should  have  power  to  appoint 
commissioners  for  investigating  facts  at  a  distance  from  Great 
Britain  and  should  have,  indeed,  all  the  powers  necessary  to 
make  its  jurisdiction  effective.  Such  powers,  it  would  seem,  an 
international  supreme  court  ought  to  have. 

In  view  of  the  fact  that  states  may  represent  the  claims  of 
their  citizens  against  foreign  states,  the  volume  of  business  of  a 
supreme  international  court  will  tend  to  be  increasingly  large, 
and  it  will  become  increasingly  necessary  as  it  has  in  the  case 
of  the  Supreme  Court  of  the  United  States,  that  the  jurisdiction 
of  such  a  court  should,  so  far  as  possible,  be  limited  to  deciding 
questions  which  it  has  been  impossible  to  decide  by  agreement  or 
by  resort  to  any  other  tribunal. 

If  it  be  the  case,  as  it  appears  to  be,  that  one  of  the  functions 
of  such  an  international  supreme  court  would  be  to  administer 
this  supreme  universal  law,  it  would  follow  that  it  ought  to  have 
jurisdiction,  similar  to  that  which  the  Supreme  Court  of  the  United 
States  has  under  the  Fourteenth  Amendment,  in  cases  where  a 
citizen  of  the  state  complains  against  his  own  state  for  its  vio- 
lation of  the  principles  of  this  supreme  universal  law.  Juris- 
diction of  such  cases,  would,  it  would  seem,  be  as  useful  for  doing 
away  with  the  necessity  of  civil  war  as  would  the  jurisdiction  of 


138  JUDICIAL  SETTLEMENT 

cases  between  states  for  doing  away  with  the  necessity  of  foreign 
war. 

This  examination  of  the  development  of  the  American  doctrine 
of  jurisdiction  of  courts  over  states  will,  it  is  hoped,  have  served 
to  show  that  the  Supreme  Court  of  the  United  States  does  not 
exist  merely  as  part  of  the  Federal  Union  for  the  interpretation  of 
the  Constitution,  but  that  it  has  a  reason  for  its  existence  which 
appeals  equally  to  all  the  nations  of  the  world,  in  that  it  expounds 
and  applies  the  supreme  universal  law  securing  the  fundamental 
rights  of  the  individual,  which  the  Constitution  recognizes  and 
which  binds  all  nations  and  peoples;  and  in  that  it  upholds  the 
fundamental  rights  of  the  states  as  the  best  means  of  upholding 
this  law. 

It  would  seem,  therefore,  that  it  is  immaterial  whether  the 
nations  of  the  world  shall  federate  in  the  same  way  that  the 
United  States  have  federated  or  in  any  other  way;  or  whether 
they  shall  remain  substantially  as  they  are  at  present.  The 
close  relationship  of  federal  union  under  a  general  govern- 
ment may  be  too  intimate  for  the  separated  and  diverse  nations  of 
the  world,  and  the  most  efficient  bond  of  union  may  be  this  sup- 
preme  universal  law  securing  the  fundamental  rights  of  the  indi- 
vidual against  all  governmental  action,  administered  by  the  courts 
of  all  the  nations,  federal  states  and  empires  of  the  world,  and 
in  the  last  resort  on  appeal  by  an  international  supreme  court 
established  by  the  nations. 

THE  CHAIRMAN  (MARBURG)  :  Is  it  desired  to  discuss  this  very 
able  and  interesting  paper?  If  not,  I  will  present  to  you  the  next 
speaker,  Mr.  Eugene  Wambaugh,  Professor  of  Law,  Harvard 
University,  whose  subject  is  "Why  the  Growth  of  Law  is  Aided 
by  Courts  More  than  by  Commissions." 


WAMBAUGH  139 

WHY  THE  GROWTH  OF  LAW  IS  AIDED  BY  COURTS 
MORE  THAN  BY  COMMISSIONS 

EUGENE   WAMBAUGH 

When  an  international  commission  is  contrasted  with  a  court, 
the  distinctions  which  are  brought  to  mind  are  numerous;  but 
for  the  present  purpose  it  is  enough  to  call  attention  to  only  a  few. 

To  begin  with,  a  court  is  necessarily  and  always  composed 
entirely  of  persons  who  are  free  from  interest  hi  the  litigation, 
whereas  this  is  not  invariably  true  of  commissions,  it  being  com- 
mon in  constituting  a  commission  to  allow  to  each  party  repre- 
sentation and  to  offset  this  obvious  defect  as  far  as  possible  by 
adding  some  persons  without  bias.  The  resultant  difficulties 
will  be  briefly  pointed  out  by  and  by;  but  they  may  be  ignored 
just  now  for  the  reason  that  for  the  present  purpose — the  dis- 
cussion of  the  preferable  mode  of  aiding  the  growth  of  law— 
another  diversity  between  courts  and  commissions  is  much  more 
important. 

This  other  diversity  may  be  found  in  the  facts,  closely  related 
to  one  another,  that  a  court  is  a  permanent  body,  whereas  an 
international  commission  is  temporary,  that  a  court  is  expected 
to  pass,  and  does  pass,  upon  an  indefinite  number  of  many  sorts  of 
cases,  whereas  a  commission  passes  upon  one  case  only,  or  upon 
one  series  of  related  cases,  and  that  a  court  is  organized  for  the 
purpose  of  dealing  with  disputes  both  present  and  future,  whereas 
a  commission  deals  exclusively  with  disputes  already  existent. 

The  diversity  just  now  outlined,  based  upon  a  court's  con- 
tinued existence,  will  be  found  to  give  the  key  to  any  discussion 
of  the  function  of  a  court  in  the  development  of  law. 

Yet  at  this  point  some  one  may  well  be  asking  whether  to  make 
law  is  any  function  of  a  court.  Is  not  that  a  function  of  the 
legislature  rather  than  of  the  judiciary — of  international  con- 
gresses and»the  treaty-making  branches  of  government,  rather 


140  JUDICIAL  SETTLEMENT 

than  of  international  courts?  Is  it  not  the  function  of  a  judge 
simply  to  expound  the  law,  and  not  at  all  to  make  it — "jus  dicer e, 
non  jus  dare?" 

Yes,  undoubtedly  it  is  the  function  of  the  judge  to  expound  the 
law  rather  than  to  make  it.  Yet  the  peremptory  function  of  the 
judge — the  one  duty  which  he  cannot  by  any  possibility  escape — 
is  to  decide  the  case  before  him.  What  is  he  to  do  if  there  is  no 
recognized  law  applicable  to  that  case?  Doubtless  he  would  like 
to  say  exactly  that,  and  to  decline  to  consider  the  problem  further; 
but  this  is  a  course  which  he  cannot  pursue.  The  case  must  be 
decided;  and  he  must  decide  it  himself;  and  he  must  decide  it  in 
favor  of  one  party  or  of  the  other.  Further,  he  must  decide  it 
not  arbitrarily,  but  in  accordaance  with  some  reason;  for  that 
he  should  decide  it  in  reliance  upon  some  general  principle — a 
principle  which,  as  he  believes,  he  would  apply  in  any  similar 
instance — is  required  by  the  structure  of  his  own  mind  and  by 
the  dictates  of  his  own  conscience.  That  general  principle,  in 
accordance  with  which  he  decides  this"  case,  becomes,  from  his 
own  point  of  view,  a  rule  prescribed  by  logic  and  justice,  a  rule 
which,  though  perhaps  never  before  reduced  to  words,  must 
always  have  existed,  awaiting  simply  some  such  emergency  as 
this  to  call  it  into  activity,  and  a  rule  which  similarly  must  live 
forever. 

That  is  what  happens  when  the  judge,  unable  to  find  a  recog- 
nized law,  decides  his  first  case.  When  he  decides  his  second 
case  in  similar  circumstances,  the  same  thing  happens  again, 
unless  the  second  case  bears  some  similarity  to  the  first.  If 
there  be  similarity,  the  rule  discovered  in  the  first  case — unless, 
indeed,  further  consideration  has  shown  an  error — is  applied  in 
the  second  also.  Perhaps  it  is  worth  while  to  point  out  the  reasons 
why  this  will  happen.  In  the  first  place,  the  mind  which  has 
once  worked  in  a  certain  way  is  likely  to  work  in  the  same  way 
again,  even  if  we  leave  out  of  the  account  the  force  of  habit. 
In  the  second  place,  mere  distaste  for  unnecessary  mental  exertion 


WAMBAUGH  14! 

dictates  that  the  later  case  be  decided  upon  the  same  principles 
which  memory  supplies  as  having  decided  the  earlier  case.  In 
the  third  place,  there  is  a  natural  desire  for  intellectual  consistency 
and  constancy.  In  the  fourth  place,  there  is  a  conception  that 
justice  to  the  parties  interested  hi  the  earlier  case,  as  well  as  to 
the  parties  interested  in  the  later  one,  demands  that  the  same 
rule  be  applied  now.  Surely,  these  are  reasons  enough  to  indicate 
why  it  is  almost  certain  that  the  same  judge  will  decide  two 
similar  cases  by  applying  as  far  as  is  practicable  one  doctrine. 
Further,  if  the  later  case  cannot  be  solved  by  simply  applying 
the  earlier  principle,  for  the  reason  that,  though  somewhat 
similar,  the  later  case  contains  important  differences,  nevertheless, 
or  all  the  reasons  just  now  pointed  out,  the  old  principle  will  be 
applied  as  far  as  is  possible  and  will  be  merely  supplemented  in 
such  manner  as  to  become  adequate  to  the  new  problem.  Conse- 
quently, if  one  judge  remains  in  office  for  years  and  passes  upon  a 
great  number  of  cases,  he  gradually  develops  a  complete  and  har- 
monious system  of  doctrine — in  fact  a  science — wherewith  he  can 
solve,  probably  with  justice  and  certainly  with  consistency,  a  host 
of  problems  many  of  which  have  not  yet  arisen.  If  there  be  not  one 
judge,  but  a  bench  of  judges,  permanent  save  as  vacancies  are  filled 
now  and  then,  there  is  the  same  result,  with  the  added  feature 
that  the  views  of  a  body,  though  certainly  not  necessarily  held 
with  unanimity,  are  likely  to  be  greatly  improved  by  constant 
consultations.  Even  when  the  composition  of  the  court  has 
been  wholly  changed,  none  of  the  former  members  remaining 
on  the  bench,  there  occurs  much  the  same  result. 

It  should  be  borne  in  mind  that  the  greater  part  of  this  result 
depends  upon  the  permanency  of  the  court — that  is  to  say,  upon 
the  fact  that  the  same  persons,  or  at  least  the  same  body  of 
persons,  pass  upon  a  long  series  of  problems  and  realize  the 
necessity  of  causing  their  past  and  future  decisions  to  harmonize. 

Permanency  of  the  court  is  the  first,  then,  of  the  features  en- 
abling a  body  of  judges  to  develop  a  science  of  law — a  system 


142  JUDICIAL   SETTLEMENT 

of  consistent  and  interdependent  rules.  The  second  element  is 
the  publishing  of  a  series  of  judicial  opinions  explaining  and  per- 
petuating the  principles  upon  which  the  court  proceeded  in  decid- 
ing the  cases  brought  before  it.  It  should  be  understood — and 
every  lawyer  will  take  it  for  granted — that  the  function  of  a  court 
in  embodying  law  in  an  opinion  is  strictly  limited  to  the  necessities 
of  the  very  case.  To  that  extent,  and  to  that  extent  only,  is  it 
necessary,  and  hence  proper  and  official,  for  the  court  to  indicate 
how  it  would  decide  a  later  case  and  thus  to  bind  its  hands  for 
the  future. 

It  is  through  the  pronouncing  and  publishing  of  the  opinions 
that  the  present  and  future  members  of  the  court  are  enabled 
to  bear  in  mind  constantly  the  past  and  present  state  of  the  law. 
Thus,  too,  persons  puzzled  as  to  their  own  rights  and  duties 
are  enlightened  and  enabled  to  conduct  themselves  in  such  manner 
as  to  avoid  difficulty,  or  at  least  to  diminish  it.  Thus,  too, 
counsel  are  furnished  with  the  basis  for  advice  and  argument. 

The  allusion  to  counsel  brings  into  view  the  third  feature 
which  causes  a  court  to  be  a  valuable  aid  in  the  development 
and  promulgation  of  legal  doctrine.  Conceivably  there  might 
be  a  permanent  court  without  a  body  of  counsel  habitually 
practicing  before  it;  but  certainly  there  is  no  such  court.  A  court 
implies  practitioners.  These  practitioners  purport  to  be,  and  are, 
officers  of  the  court,  assistants  in  the  doing  of  justice;  and  it  is 
impossible  to  exaggerate  the  importance  of  the  service  which  the 
court  receives  from  them.  However  able  the  court  may  be,  never- 
theless, with  the  exception  of  courts  dealing  with  some  very  narrow 
specialty,  there  is  no  possibility  that  the  judges  will  be  able  to 
master  the  intricacies  of  each  case  in  a  reasonable  time  without 
the  aid  of  counsel — specialists  in  that  very  case,  persons  who  have 
devoted  months,  perhaps  years,  to  a  search  for  every  authority  or 
argument  from  which  this  one  dark  porblem  can  receive  light. 
Not  only  are  counsel  hi  this  sense  specialists,  and  thus  at  an  ad- 
vantage even  when  they  have  no  peculiar  ability,  but,  further, 


WAMBAUGH  143 

in  all  disputes  involving  large  interests  counsel  are  men  of  unusual 
powers  and  acquirements.  Indeed,  any  court  would  appreciate  as 
a  compliment  a  statement  that  the  counsel  who  appear  before 
that  court  in  cases  of  great  importance  do  not  surpass  in  ability 
and  learning  the  court's  individual  members. 

Enough  has  been  said  to  indicate  how  it  is  that  the  creating 
of  a  permanent  court  will  promote  the  development  and  promul- 
gation of  an  harmonious  system  of  law.  This  is  not  an  argument 
that  rests  on  mere  theorizing.  It  was  in  the  manner  indicated 
that  Lord  Stowell  and  the  Supreme  Court  of  the  United  States 
developed  the  Law  of  Prize. 

The  forces  are,  as  has  been  said,  the  effort  of  the  court  itself 
to  create  a  science,  the  publication  of  judicial  opinions,  and  the 
existence  of  a  body  of  expert  counsellors.  Much  of  this  course 
of  thought  has  been  condensed  into  a  few  sentences  hi  a  com- 
ment upon  English  court  practice  by  a  master  of  statesmanship, 
Edmund  Burke.  Long  ago  he  wrote: 

"Your  committee  do  not  find  any  positive  law  which  binds 
the  judges  ...  to  give  a  reasoned  opinion  from  the  bench 
in  support  of  their  judgment.  .  .  .  But  the  course  hath 
prevailed  from  the  oldest  tunes.  .  .  .  The  judges,  in  their 
reasonings  have  always  been  used  to  observe  on  the  arguments 
employed  by  the  counsel  on  either  side,  and  on  the  authorities 
cited  by  them.  .  .  .  The  English  jurisprudence  has  not 
any  other  sure  foundation,  nor,  consequently,  the  lives  and 
properties  of  the  subject  any  sure  hold,  but  in  the  maxims,  rules, 
and  principles,  and  traditionary  line  of  decisions  contained  in  the 
notes  taken,  and  from  time  to  time  published,  (mostly  under  the 
sanction  of  the  judges),  called  'Reports.'  .  .  .  With  us 
doctrinal  books  .  .  .  have  little  or  no  authority,  other 
than  as  they  are  supported  by  the  adjudged  cases  and  reasons 
given  at  one  time  or  other  from  the  bench ;  and  to  these  they  con- 
stantly refer.  ...  To  give  judgment  privately  is  to  put 
an  end  to  reports;  and  to  put  an  end  to  reports  is  to  to  put 


144  JUDICIAL   SETTLEMENT 

an  end  to  the  law  of  England.  .  .  .  Nothing  better  could 
be  devised  by  human  wisdom  than  argued  judgments,  publicly 
delivered,  for  preserving  unbroken  the  great  traditionary  body 
of  the  law,  and  for  marking,  whilst  that  great  body  remained 
unaltered,  every  variation  in  the  application  and  the  construction 
of  particular  parts." 

Here  the  question  may  well  be  asked  whether  on  the  continent 
of  Europe,  and  in  other  countries  using  systems  descending  from 
the  Roman  Law,  there  is  not  a  view  rejecting  decisions  as  creators 
or  even  demonstrators  of  law,  and  whether  in  consequence  it 
must  not  happen  that  the  decisions  of  international  courts  will 
not  be  recognized  as  authoritative  sources  of  legal  doctrine. 
To  such  a  question  two  answers  can  be  given.  One  is  that  in 
the  nature  of  things  the  force  of  judicial  decisions  must  be  great, 
for  the  reasons  already  pointed  out.  The  other  answer  is  that, 
whatever  the  theory  of  continental  and  other  jurists  may  be, 
their  actual  practice  as  to  this  matter  is  substantially  the  same 
as  the  practice  of  the  lawyers  of  England  and  America.  The 
libraries  of  lawyers  in  Roman  Law  countries  are  crowded  with 
reports  of  adjudged  cases,  and  these  volumes  are  referred  to  by 
lawyers  and  judges  there  in  much  the  same  way  as  similar  volumes 
are  used  in  England  and  America.  It  is  of  little  practical  conse- 
quence that  in  Roman  Law  countries  the  theory  is  that  each  case 
is  decided  upon  the  basis  of  the  court's  new  and  untrammeled 
opinion  as  to  the  rights  of  the  parties,  and  not  at  all  upon  the 
basis  of  a  doctrine  that  the  earlier  opinions  of  other  courts,  or  at 
least  of  this  very  court,  should  now  be  followed,  whereas  in 
England  and  America  and  other  Common  Law  countries  the 
theory — briefly  called  stare  decisis — is  that  past  decisions  are 
authoritative.  The  result  is  the  same,  and  always  must  be  the 
same,  namely  that  the  reasoned  decisions  of  skilled  courts  com- 
mand respect,  win  approval,  and  develop  law. 

So  much  for  courts.  And  now  for  commissions.  There  is 
time  for  but  a  few  words,  and  a  few  will  be  enough.  As  a  com- 


WAMBATJGH  145 

mission  is  temporary,  passes  upon  only  one  question  or  series  of 
questions,  and  has  no  responsibility  as  to  future  problems — all 
of  which  points,  by  the  way,  characterize  the  commissions  which 
may  from  time  to  time  be  selected  from  the  so-called  Permanent 
Court  of  Arbitration  at  The  Hague — what  has  been  said  of  the 
development  of  a  science  through  courts  disappears  when  the 
discussion  passes  to  commissions.  Nor  are  the  decisions  of  com- 
missions habitually  supported  by  statements  of  legal  propositions. 
The  opinions  of  such  commissions  are  not,  as  a  matter  of  fact, 
treated  as  a  source  of  law.  They  are  seldom  quoted,  or  even 
cited,  in  international  law  treatises.  Nor  are  they  dealt  with  as 
valuable  proofs  of  law  by  later  international  commissions.  In 
other  words,  each  case  is  decided  as  if  it  were  an  isolated  prob- 
lem, sporadic,  never  occurring  before  and  never  to  occur  again. 
Finally,  there  is  not,  and  cannot  be,  a  bar  of  counsellors  learned 
in  the  science  of  the  law  of  commissions;  for  that  science  is  non- 
existent. The  state  of  affairs  was  approximately  described  by 
Milton,  when,  dealing  with  another  matter,  he  wrote: 

."Chaos  umpire  sits, 

And  by  decision  more  embroils  the  fray 
By  which  he  reigns:  next  him  high  arbiter 
Chance  governs  all." 

Thus  far  it  has  been  unnecessary  to  comment  upon  the  intel- 
lectual and  moral  difficulties  presented  when  an  international 
commission  is  composed,  wholly  or  partly,  of  persons  who  repre- 
sent the  litigants.  What  position  is  more  embarrassing  than 
that  of  a  prejudiced  arbitrator  who  wishes  to  do  justice,  but  who 
realizes  his  prejudice?  What  is  more  certain  than  that  usually 
the  prejudice  will  not  be  overcome?  What  is  more  undeniable 
than  that  the  parties  in  interest  do  not  wish  their  respective 
representatives  to  overcome  the  prejudice?  The  notorious  result 
is  compromise.  Even  then  the  arbitrators  are  too  likely  not  to 
agree  in  the  award. 


146  JUDICIAL  SETTLEMENT 

When  commissions  contain  no  representatives  of  the  parties  in 
interest,  these  intellectual  and  moral  difficulties  largely  disappear, 
and  the  result  may  well  be  unanimity.  Fortunately,  the  first 
three  cases  referred  to  the  Hague  tribunal  were  tried,  under 
agreements,  by  commissions  upon  which  the  litigants  had  no 
representatives;  and  unanimity  was  achieved.  Thus  was  afforded 
an  instructive  contrast  with  the  lack  of  unanimity  in  two  recent 
tribunals  of  the  familiar  partisan  nature — those  dealing  with 
the  Alaskan  Boundary  and  with  the  Japanese  House  Tax. 

And  the  one  great  illustration  of  the  intellectual  and  moral 
difficulties  surrounding  a  partisan  tribunal  cannot  be  forgotten 
at  this  time;  for  it  happened  that  this  present  series  of  meetings 
began  yesterday  upon  the  anniversary  of  the  first  session  of  the 
Geneva  Arbitration  on  the  Alabama  Claims.  That  was  a  dra- 
matic exhibition  set  upon  a  stage  of  unrivalled  prominence.  Ad- 
visedly the  transaction  is  termed  dramatic.  The  facts  upon 
which  the  tribunal  was  to  pass  were  already  of  world- wide  knowl- 
edge, and  hardly  needed  further  investigation.  The  points  of 
law — in  a  manner  showing  almost  miraculous  wisdom  and  good- 
feeling  on  the  part  of  Great  Britain — had  already  been  fixed  by 
the  preliminary  treaty  made  at  Washington.  What  remained 
to  be  done — save  on  the  overlooked  point  of  law  as  to  indirect 
damages — might  well  have  been  passed  upon  by  an  ordinary 
board  of  marine  adjusters.  For  dramatic  effect,  however,  there 
was  an  international  tribunal ;  and  to  one  Englishman,  one  Ameri- 
can, and  three  unbiased  foreigners  were  assigned  the  leading  parts 
in  an  instructive  drama  which,  it  was  hoped,  might  be  worthy  of 
some  such  title  as  "Noblesse  Oblige;  or  How  Great  Nations  Settle 
Great  Disputes."  Yet  the  English  arbitrator,  notwithstanding 
the  success  of  his  country's  contention  as  to  indirect  damages, 
could  not  reconcile  himself  to  a  finding  which,  on  the  whole,  was 
unfavorable  to  his  constituents.  He  could  not  treat  without  emo- 
tion a  matter  in  which  his  own  feelings  were  so  deeply  involved. 
With  a  frankness  which  did  him  honor  he  made  no  pretenses. 


DISCUSSION  147 

He  refused  to  sign  the  award.  He  refused  to  play  his  part  in 
the  final  dramatic  festivities.  He  somewhat  spoiled  the  drama 
as  a  representation  of  "Noblesse  Oblige";  but  he  performed  a 
service  of  world- wide  utility,  nevertheless;  for  he  demonstrated 
conspicuously  the  folly  of  creating  a  tribunal  afflicted  with  a  bias. 
And  now  let  us  lay  aside  unpleasant  memories.  They  have 
served  their  full  purpose  if  they  have  enabled  us  to  see  more 
clearly  the  advisability  of  a  change  to  tribunals  which  are  per- 
manent and  unprejudiced — hi  fact  to  courts  distinctly  similar 
to  those  which  now  try  disputes  between  individuals.  When 
a  real  international  court  is  established — skillful,  permanent,  free 
from  partisanship — then  inevitably,  as  the  earlier  part  of  this 
discussion  has  attempted  to  demonstrate,  the  judges,  their  pub- 
lished opinions,  and  an  expert  bar  will  bring  it  to  pass  that  inter- 
national law — to  use  the  words  of  Tennyson — "  broadens  slowly 
down  from  precedent  to  precedent." 

MOORFIELD  STOREY:  In  the  paper  just  read  the  Geneva  Tri- 
bunal was  mentioned.  Mr.  Charles  Francis  Adams  told  me  that 
when  the  Geneva  Tribunal  met  there  was  a  dais  on  which  the 
three  neutral  arbitrators  had  seats,  and  a  long  table  hi  front  with 
a  single  seat  at  each  end,  the  seat  at  one  end  being  assigned  to 
Sir  Alexander  Cockburn  the  English  member  of  the  Tribunal, 
that  at  the  other  to  Mr.  Adams,  the  American  member.  As 
they  entered  the  hall  Sir  Alexander  Cockburn  said,  "You  see, 
Mr.  Adams,  they  perfectly  well  understand  our  relations  to  this 
arbitration."  And  so  he  assumed  the  attitude  of  counsel  and 
understood  that  as  his  position. 

MR.  CRAMMOND  KENNEDY:  Mr.  Chairman,  it  seems  to  me  the 
gentleman  who  has  given  us  such  an  interesting  discussion 
of  the  difference  between  commissions  and  courts  has  clearly 
minimized  the  services  and  the  authority  that  characterize  com- 
missions. 


148  JUDICIAL   SETTLEMENT 

Take,  for  instance,  the  first  commission  in  Paris,  between  Great 
Britain  and  the  United  States.  What  better  counsel  has  any 
body  of  men  had  than  Mr.  Pinckney.  To  be  sure,  he  was  one 
of  the  commissioners  representing  the  United  States,  but  that 
commission  laid  the  foundation  for  the  doctrine  that  the  decisions 
of  the  highest  courts  of  the  defending  bodies  did  not  bind  the  com- 
mission and  could  actually  be  treated  as  denials  of  justice. 

Take  all  the  commissions,  I  mean  the  great  commissions  that 
have  passed  upon  questions  submitted  to  them,  and  you  will 
find  they  have  not  only  had  the  requisite  of  judicial  ability,  but 
they  have  made  decisions  which  are  now  imbedded  in  interna- 
tional law.  Take  the  arbitration  that  has  just  been  alluded  to. 
Could  better  counsel,  could  better  judges  have  been  found  to  serve 
their  country  on  that  momentous  occasion? 

Take  the  Seal  Fisheries  Arbitration.  Does  the  criticism  apply 
to  that?  Or  to  the  commission  that  sat  in  Washington  under 
the  same  treaty,  under  which  the  Geneva  Tribunal  convened. 
That  commission  reviewed  substantially  the  decisions  of  the 
Supreme  Court  itself,  and  upon  the  facts  and  the  law  differed 
from  the  Supreme  Court  and  gave  to  the  owner  of  the  vessel  and 
also  to  the  owners  of  the  cargo  the  relief  that  had  been  denied  to 
them  by  the  Supreme  Court.  It  seems  to  me  that  we  want  to 
be  open-eyed  and  impartial  in  our  treatment  of  the  differences 
between  commissions  and  courts.  Indeed,  commissions  have 
been  decided  to  be,  by  the  Supreme  Court  itself,  courts  of  exclu- 
sive and  final  jurisdiction.  That  was  even  held  by  the  Supreme 
Court  in  a  case  that  arose  under  the  treaty  between  Spam  and 
the  United  States,  where  a  domestic  commission  entered  judg- 
ment which  has  been  regarded  ever  since  as  wrong,  and  yet  the 
Supreme  Court  of  the  United  States  has  held  that  the  commis- 
sion was  a  court  of  final  and  exclusive  jurisdiction  and  that  its 
decisions  could  not  be  collaterally  impeached,  any  more  than 
any  other  judgment. 


DISCUSSION  149 

MR.  JUSTICE  RIDDELL  (of  Canada):  Mr.  Chairman,  I  desire 
simply  to  substantiate  to  a  certain  extent  one  observation  in  the 
very  valuable  paper  which  has  just  been  read. 

The  theory  of  the  Roman  Law  that  it  is  not  the  judge  who  lays 
down  the  law  at  all  is  the  theory  of  a  great  many  countries  whose 
law  has  been  derived  from  the  Roman  Law;  amongst  those 
countries  is  one  with  which  I  am  well  acquainted,  the  Province 
of  Quebec. 

The  laws  of  that  Province  are  based  on  the  old  French  law, 
which  in  turn  is  based  upon  the  ancient  law,  and  it  is  the  theory 
there  that  a  judge  ought  to  decide  a  case  irrespective  of  the  manner 
in  which  other  judges  have  decided  similar  cases,  decide  the 
case  upon  his  own  view  of  what  is  just  and  right.  In  our  Supreme 
Court  of  Canada  that  law,  the  French-Canadian  law,  is  being 
investigated,  I  may  say,  every  day.  I  have  myself  argued 
cases  in  the  province  of  Quebec,  and  while  the  judges  invariably 
protest  that  they  are  not  bound  by  authorities,  they  are  in  reality 
and  in  fact  as  much  bound  by  authorities  as  the  judges  in  the 
Province  of  Ontario. 

In  the  British  empire  there  is  the  English  Common  Law,  the 
modern  civil  law,  Spanish  law,  and  Roman  Law,  and  the  almost 
innumerable  laws  that  exist  in  the  various  states  and  countries 
and  parts  of  India.  In  all  those  laws,  although  the  theory  in 
Indian  law  also  is  that  there  is  no  such  thing  as  authority,  authori- 
ties are  constantly  cited  to  the  Privy  Counsel,  and  as  constantly 
the  Privy  Counsel  give  effect  to  the  previous  decisions.  The 
Privy  Counsel  themselves  asseverate  most  vigorously  that  not 
being  a  court,  but  simply  a  committee  to  advise  His  Majesty 
as  to  what  is  right  to  be  done  they  are  not  bound  by  previous 
decisions.  But  notwithstanding  that  fact,  if  you  can  cite  one 
of  their  own  cases  to  them  your  case  is,  if  not  absolutely  won, 
very  nearly  won.  There  is  only  one  case  so  far  as  I  know  in  his- 
tory in  which  the  Privy  Counsel  have  reversed  their  own  pre- 
vious decision. 


150  JUDICIAL   SETTLEMENT 

I  arose  to  bear  witness  to  the  truth  of  what  Professor  Wambaugh 
stated,  that  while  in  certain  spheres  it  may  be  said  or  supposed 
that  authority  is  not  binding,  in  fact  authority  is  just  as  much 
binding  in  appeals  under  these  systems  of  law  as  it  is  in  our  own 
Common  Law  Courts.  I  entirely  concur  in  everything  my  friend 
has  said.  If  we  had  a  permanent  court,  such  as  is  suggested,  the 
decisions  would  be  binding,  the  decisions  would  be  followed,  and 
at  length  before  very  long  we  would  have  a  complete  and  con- 
sistent system  of  international  law,  which  is  very  much  to  be 
desired. 

PROFESSOR  WAMBAUGH:  Mr.  Chairman,  I  simply  wish  to 
remark  that  I  myself,  in  the  preparation  of  this  paper,  examined 
rather  carefully  all  these  treatises  on  international  law,  and  I 
failed  to  find  in  the  text  or  in  the  footnotes  any  citation  of  any 
decisions  by  an  international  commission.  I  did  not  venture 
to  say  the  thing  has  never  been  done.  I  shall  leave  that  to  you 
gentlemen  to  discover.  And  may  I  not  ask  some  of  you  to  bear 
that  in  mind  and  to  see  if  you  can  find  any  treatise,  large  or 
small,  in  which  the  decisions  of  an  international  commission 
are  cited  as  in  the  boundaries  of  law. 

Another  thing  I  wish  to  say — I  was  afraid  I  might  anticipate 
the  next  speaker,  and  I  refrained;  I  find  in  Mr.  Ralston's  recent 
book,  in  which  he  attempts  to  gather  together  what  he  can  of 
the  decisions  of  international  tribunals,  a  statement  that  the 
doctrine  of  'stare  decisis'  is  not  recognized  by  an  arbitral  com- 
mission. I  am  sorry  I  was  led  to  say  that,  because  perhaps  he 
wants  to  say  it  himself,  and  can  say  it  much  better. 

THE  CHAIRMAN  (MARBURG)  :  The  next  speaker  has  already  had 
an  introduction  from  the  distinguished  Professor  of  Law  of  Har- 
vard University.  I  will  simply  remind  you  of  his  activities  before 
tribunals  such  as  we  are  discussing.  He  took  part  in  the  first 
case  that  came  before  the  Hague  Tribunal  and  later  on  appeared 


RALSTON  151 

in  connection  with  the  Mixed  Commission  at  Venezuela.  It  gives 
me  great  pleasure  to  introduce  to  you  Mr.  Jackson  H.  Ralston. 
His  topic  is 

SOME  CONSIDERATIONS  AS  TO  INTERNATIONAL 
ARBITRAL  COURTS 

JACKSON  H.  RALSTON 

The  establishment  of  arbitral  courts  and  the  submission  of 
international  disputes  to  judicial  determination  involve  an 
infringement  upon  absolute  national  sovereignty.  The  very 
existence  of  a  sovereign  denies  the  idea  of  equality  in  others. 
The  sovereign  does  not  willingly  answer  for  his  actions,  or  sub- 
mit himself  to  criticism  or  correction.  If  a  sovereign  head  can 
be  forced  for  any  reason,  whether  it  be  by  contract  through 
treaty,  or  by  the  pressure  of  the  enlightened  opinion  of  the  world, 
to  obey  the  dictates  of  a  court,  being  no  longer  the  uncontrolled 
dictator  of  his  own  movements  as  against  other  nations,  and  all 
other  nations  being  subject  to  like  restraint,  the  essential  basis 
of  sovereignty  disappears  and  human  equality  commences  to 
assume  its  rightful  preeminence.  And  just  as  democratic  writers 
are  forced  to  explain  that  equality  among  men  does  not  negative  the 
idea  that  one  may  be  more  moral,  more  intelligent,  more  learned, 
greater  in  strength  or  wealth  than  his  fellows,  but  only  means  that 
before  the  law  the  position  of  all  must  be  brought  to  a  common 
level,  so  as  to  nations,  submission  to  judicial  tribunals  does  not 
imply  their  intellectual  or  material  equality,  but  only  that  the 
judges  of  their  disputes,  unmoved  by  any  consideration  affecting 
the  character  or  power  of  the  respective  litigants,  shall  apply 
equally  between  them  rules  of  abstract  justice. 

The  idea  that  a  state  was  not  sovereign  in  a  strict  sense,  but 
only  an  equal  before  the  law  with  every  other  state,  and  its  head 
equal  with  every  other  man — in  other  words,  that  neither  it  nor 


152  JUDICIAL   SETTLEMENT 

he  could  be  rightfully  judge  and  executioner — is  a  modern  one, 
born,  let  us  believe,  of  the  growth  of  democratic  ideals.  So  long 
as  a  monarch  recognized  no  power  between  his  own  and  that  of 
the  Almighty,  so  long  as  he  believed  himself  the  Lord's  Anointed, 
naturally  he  would  brook  no  interference  with  his  purposes,  and 
would  not  submit  himself  to  anything  short  of  superior  physical 
force  or  the  fear  of  it.  Thus  it  is  that  prior  to  the  ushering  in  of 
the  modern  democratic  age,  conveniently  dated  back  to  the 
formation  of  our  government,  few  cases,  if  any,  could  be  found 
of  monarchs  referring  to  citizens  or  subjects  of  other  nations, 
the  determination  of  their  contentions.  Such  submission  did 
not  comport  with  the  sacred  character  of  kingship;  and  arbitra- 
tions, if  permitted  at  all,  were  placed  in  the  hands  of  other  kings, 
or  else  of  the  pope,  as  the  universal  spiritual  head. 

But  as  I  have  indicated,  a  new  spirit  was  influencing  mankind. 
The  theoretical  equality  of  human  beings  became  recognized. 
The  idea  that  the  Lord  was  represented  in  person  by  those  whom 
force  or  accident  had  placed  at  the  head  of  nations  disappeared, 
and  it  was  no  longer  derogatory  to  the  dignity  of  a  national  chief, 
who  now  became  a  mere  human  being,  to  submit  the  differences 
of  those  whom  he  represented,  to  the  arbitrament  of  other  human 
creatures.  Thus  it  happened  very  naturally  that  the  modern 
era  of  arbitrations  was  inaugurated  by  the  tribunals  established 
under  the  Jay  treaty,  the  parties  thereto  being  the  democratic 
republic  of  the  United  States  and  the  democratic  monarchy  of 
England.  Yet  it  will  not  be  presumed  that  this  great  principle 
of  arbitration  was  at  once  exemplified  by  perfect  working  machinery, 
or  that  even  to  this  day  perfection  in  design  or  operation  has  been 
attained. 

Could  anything  be  cruder  than  the  manner  of  formation  of  the 
tribunal  under  the  seventh  article  of  the  Jay  treaty?  Two 
Americans  were  named  on  behalf  of  the  United  States,  and  two 
Englishmen  on  behalf  of  Great  Britain,  chance  naming  an  Ameri- 
can as  the  fifth  man.  The  wonder  was  that  under  such  unfavor- 


RALSTON  153 

able  conditions  awards  could  have  been  made  at  all  acceptable 
to  the  parties  in  interest.  If,  as  believed  by  many,  partizanship 
controlled  our  Electoral  Commission  some  seventy-five  years 
later,  was  it  to  be  expected  that  more  than  one  hundred  years 
ago  arbitrators  would  forget  that  before  being  judges  they  had 
for  all  their  previous  careers  been  inhabitants  of  England  or 
America,  during  all  that  time  solving  all  doubts  in  favor  of  their 
native  lands?  Was  the  fifth  man  to  be  oblivious  of  the  fact  that 
he  had  fought  valiantly  for  America  in  the  revolution,  even 
though  he  believed  that  his  country  had  not  always  appreciated 
his  services  to  the  full? 

Subsequent  arbitrations  have  marked  a  development  not 
always  uniform,  not  always  logical.  Even  up  to  recent  months 
have  we  recurred  to  the  ancient  form  of  reference  of  national 
differences  to  the  sovereign  of  a  disinterested  power.  Generally 
of  late,  such  references  have  been  intended  as  a  matter  of  com- 
pliment to  the  arbitrating  nation  rather  than  as  a  tribute  to  the 
ability  or  fairness  of  the  individual  named  in  terms — a  departure 
from  the  foundation  principles  of  arbitration.  Always  it  is  now 
understood  that  the  national  head  himself  does  not  act  save  after 
examination  by  and  upon  the  recommendation  of  presumably 
qualified  subordinates.  Directness  would  dictate  reference  im- 
mediately to  the  qualified  men  whose  determination  would  cany 
with  it  above  all  the  sanction  of  their  integrity  and  ability,  some- 
thing greater  to  be  desired  than  the  adventitious  aid  of  political 
position. 

As  I  have  indicated,  political  considerations  have  moved 
nations  to  make  such  references,  but  their  only  merit  has  been— 
and  this  merit,  balancing  all  other  things,  is  but  slight — their 
simplicity  and  inexpensiveness,  since  a  sovereign  may  not  be  paid 
for  such  services.  A  positive  weakness  is  that  the  taking  of 
judicial  action  by  a  political  head  may  bring  about  complications 
embarrassing  to  one  or  all  of  the  governments  involved.  This 
has  been  well  illustrated  by  the  results  of  the  attempted  solution 


154  JUDICIAL   SETTLEMENT 

by  the  Argentine  Republic  of  the  recent  Peruvian-Bolivian 
boundary  trouble  and  of  the  strained  relations  of  Peru  and 
Ecuador  growing  out  of  the  reference  of  their  dispute  to  the 
Kingdom  of  Spain.  In  the  first  of  these  instances,  Argentine 
was  placed  in  a  position  of  political  difficulty  and  in  the  second 
the  Spanish  Crown  might  have  found  itself  disagreeably  involved. 
Yet  we  have  to  note  that  the  British  Crown  has  but  just  under- 
taken to  solve  the  Alsop  case  between  the  United  States  and  Chile. 

Let  us  return  for  a  moment  to  the  form  of  mixed  commission 
first  illustrated  by  the  Jay  treaty.  Two  evils,  as  I  conceive 
them,  departures  from  the  judicial  idea,  are  manifest:  nationals 
sat  upon  the  bench  and  the  umpire  was  chosen  from  among  the 
contending  nations.  The  latter  of  these  evils  has  been,  for  the 
most  part,  non-existent  in  the  more  recent  commissions,  although 
in  the  British- American  Commission  of  1853,  after  the  office  of 
umpire  had  been  offered  to  and  declined  by  Ex-President  Van 
Buren  the  choice  fell  upon  an  American  by  birth  and  an  English- 
man by  long  association,  perhaps  as  happy  a  choice  as  might 
have  been  made,,  but  happy  only  by  chance. 

The  world  has  now  grown  so  far  away  from  the  idea  of  a 
national  of  either  party  acting  as  umpire,  that  we  may  regard 
such  selection  as  a  matter  of  curious  history,  the  most  striking 
instance  of  which  was  when,  as  has  occurred,  umpires  chosen 
from  the  nations  in  dispute,  acted  in  alternate  cases. 

Not  so,  however,  with  the  existence  of  nationals  upon  the  Court 
itself.  In  addition  to  similar  situations  upon  many  commissions 
of  lesser  importance,  an  Englishman  and  an  American  found 
places  on  the  Geneva  Arbitral  Tribunal,  and  also  upon  the  recent 
Fisheries  Tribunal  at  The  Hague.  Can  any  one  doubt  that  a 
greater  degree  of  respect  would  have  been  accorded  to  the  deter- 
minations of  the  first  of  these  courts  and  a  greater  triumph 
recorded  for  abstract  right  had  Lord  Cockburn  not  sat  upon  the 
Geneva  Tribunal?  We  would  at  least  have  been  spared  some 
unseemly  occurrences  could  all  the  judges  have  displayed  the 


RALSTON  155 

evenness  of  temper  which  characterized  the  conduct  of  all  but 
one.  Nevertheless  the  chances  of  trouble  are  again  taken  in  the 
recent  Fisheries  case  which  terminated,  fortunately,  without 
disagreeable  incident. 

We  will  not  fail  to  note  that  in  the  various  sittings  of  The 
Hague  Permanent  Court  of  Arbitration,  wherein  no  nationals  of 
either  party  have  acted  as  judges,  unanimity  of  conclusions  has 
been  reached.  We  instance  the  Pious  Fund  case,  the  Venezuela 
Preferential  case,  the  Muscat  case  and  the  Orinoco  Shipping  and 
Trading  case.  In  the  Japanese  House  Tax  case,  the  Japanese 
member  vigorously  dissented  from  the  conclusions  of  his  associ- 
ates. In  the  Casablanca  case,  wherein  the  contending  nations, 
France  and  Germany,  were  represented  upon  the  Court,  it  is  true 
an  unanimous  conclusion  was  reached,  highly  satisfactory  from 
the  standpoint  of  peace,  and  soothing  to  amour  propre,  but  the 
Court  did  not  particularly  concern  itself  with  a  discussion  of  the 
principles  of  international  law,  a  course  doubtless  wise  under  the 
circumstances. 

The  Grisbadarna  case  is  striking  in  that  the  nationals  of  Norway 
and  Sweden,  the  contending  nations,  sat  upon  The  Hague  tri- 
bunal, and  the  conclusion  reached  was  founded  upon  clear  and, 
as  I  believe,  sound  principles  of  international  law. 

But  whether  the  test  has  come  to  the  membership  of  the  most 
elevated  international  courts  wherein  all  have  been  of  the  same 
importance  in  giving  the  determining  votes,  although  the  third 
or  fifth  member,  as  the  case  might  have  been,  acted  as  presiding 
officer,  or  whether  it  has  come  in  scarcely  less  important  com- 
missions wherein  the  umpire  has  only  been  given  a  casting  vote, 
or  has  in  practice  been  a  sort  of  appellate  court,  national  com- 
missioners have  scarcely  ever  failed  to  consider  themselves  as  the 
immediate  and  patriotic  representatives  of  their  governments. 
Lord  Cockburn,  as  we  have  seen,  was  a  vigorous  and  scarcely 
respectful  dissenter  from  the  position  of  his  associates  in  the 
Geneva  tribunal.  Mr.  Kellogg  the  American  commissioner,  was 


156  JUDICIAL  SETTLEMENT 

not  willing  to  sign  the  Halifax  fisheries  award  under  the  treaty 
of  Washington,  hi  which  case  Sir  Alexander  Gait,  the  Canadian } 
may  well  be  considered  to  have  led  the  umpire  to  accept  views 
unduly  favorable  to  Canada's  contentions.  Rarely,  indeed,  did 
any  Venezuelan  member  of  the  Commissions  of  1903  accept  as 
correct,  propositions  of  international  law  tending  in  any  degree 
to  bring  about  a  result  derogatory  to  national  pride  in  the  par- 
ticular case  before  him.  Nor  did  commissioners  named  by  other 
countries  fail  less  often  to  support  contentions  which  would  have 
made  Venezuela  liable  to  condemnation.  Thus  we  find  that 
in  these  cases  as  a  rule,  commissioners  have  been  but  advocates 
of  their  country's  cause,  save  as  to  certain  instance  where  lia- 
bility or  non-liability  was  so  plainly  manifest  as  to  be  beyond 
the  reach  of  a  shadow  of  argument.  An  incidental  result  has  been 
agreement  between  commissioners  upon  compromise  adjustment 
highly  unjust  to  the  claimants  themselves. 

In  practice,  therefore,  appointments  of  nationals  upon  mixed 
commissions  have  illustrated  confusion  in  the  minds  of  the  appoint- 
ing powers  between  the  functions  of  judge  and  advocate,  and 
diminished  the  value  of  the  determination  of  the  commission  as 
evidence  of  international  law  largely  to  that  of  the  respect  to  be 
accorded  to  the  disinterested  members,  usually  the  single  umpire. 

Nor,  in  such  a  court  upon  which  nationals  sit,  is  the  umpire 
possessed  of  the  freedom  of  thought  and  action  which  should 
be  accorded  him.  The  proper  relations  between  Court  and 
counsel  are  fairly  well  understood.  To  state  that  upon  the 
subject  matter  of  controversy,  no  communication  should  ex- 
ist between  the  two  save  in  the  Court  room  and  hi  the  presence 
of  the  opposite  party,  is  to  state  a  commonplace.  Not  so  is  it 
as  between  those  who  rank  as  members  of  the  same  court.  No 
ethical  rule  prevents  the  national  commissioner  from  addressing 
himself  at  any  time  to  a  fellow  judge,  though  he  be  the  presiding 
officer  of  the  tribunal  passing  upon  the  matter  in  controversy. 
All  the  pressure  of  personal  association — perhaps  of  assumed 


RALSTON  157 

national  interest — may  be,  and  often  has  been  exercised.  Impor- 
tunities have  been  indulged  in  not  easily  to  be  checked  or  rebuked 
if  success  were  to  be  obtained  for  the  tribunal  and  harmony 
secured  for  its  operations.  All  this  does  not  imply  or  assume  the 
existence  of  corruption,  something  of  which,  save  in  a  single 
instance,  international  tribunals  have  never  been  suspected. 
With  the  drawbacks  to  which  I  have  alluded,  the  wonder  is  that 
mixed  commissions  have  met  with  the  very  high  degree  of  success 
they  have  attained. 

But  relative  or  partial  success  does  not  justify  adherence  to  a 
faulty  system.  If  a  system  be  wrong,  such  a  serious  breakdown 
may  occur  at  any  moment  as  will  prejudice  the  whole  idea  of 
judicial  settlement  of  international  disputes.  So  believing,  the 
United  States  insisted  and  agreed  in  conventions  and  treaties 
in  the  Pious  Fund  case,  the  Venezuelan  Preferential  case,  and  the 
Orinoco  Shipping  case,  and  other  nations  have,  in  their  disputes, 
provided  that  no  national  should  find  a  place  upon  the  tribunals 
deciding  them.  Unfortunately  for  the  principle,  a  different  rule 
was  followed  in  the  recent  Fisheries  case.  (I  do  not  mention  the 
Alaskan  Boundary  Commission,  as  that  was  not,  nor  as  I  under- 
stand, intended  to  be  a  true  international  court.)  Let  us  hope 
that  for  the  future  no  national  of  the  contending  parties  will  be 
permitted  to  sit  upon  The  Hague  Tribunals. 

But  international  courts  in  their  composition  should  not  be 
open  to  all  citizens  of  non-contending  nations.  The  rule  may 
be  broken  in  spirit  when  not  broken  in  letter.  If  one  nation 
guarantee  the  independence  of  another,  a  citizen  of  the  latter 
is  not  a  proper  judge  in  a  conflict  between  the  superior  govern- 
ment and  a  different  nation.  If  he  be,  the  authority  of  the 
decision  of  the  court  of  which  he  is  a  member,  may  be  weakened, 
and  our  end  should  be  to  strive  to  obtain  the  utmost  sanctity  for 
the  determination  of  arbitral  commissions,  and  to  give  them 
independence  and  force.  We  should  not  lose  sight  of  the  fact 
that,  as  at  present  constituted,  The  Hague  Court  is  largely 


158  JUDICIAL   SETTLEMENT 

composed  of  gentlemen  who  have  gained  eminence  in  the  political 
service  of  their  countries  and  displayed  evidence  of  sympathy 
with  the  theories  of  those  in  control.  I  mention  this  as  indicating 
that  the  judges  named  from  the  dependent  nations  will  be  apt 
to  be  influenced  by  the  political  feeling  of  the  superior  country. 

We  may  be  sure  that  when  any  nation  to-day  names  judges 
for  the  trial  of  a  case  at  The  Hague  in  which  it  is  concerned,  it 
informs  itself  in  advance  so  far  as  propriety  permits  as  to  whether 
those  under  consideration  are  friendly  or  unfriendly  to  the  principle 
desired  to  be  established,  or  prejudiced  for  or  against  the  parties 
to  the  conflict,  and  whether  they  are  honest  and  able.  The 
result  is  that  either  side  believes  that  it  has  named  judges  who 
are  predisposed  in  its  favor,  or  predisposed  against  its  antagonist, 
or  who  are,  at  all  events,  competent.  Exactly  this  course  is  taken 
by  the  trial  lawyer  in  a  hardly  disputed  case  before  a  jury,  with 
one  advantage  in  favor  of  the  jury  lawyer.  He  may  challenge 
the  prejudiced,  the  dishonest  and  the  incapable  or  those  whom  he 
believes  to  be  under  such  heads.  The  same  power  should  exist 
with  regard  to  The  Hague  judges,  although  the  reasons  for  chal- 
lenge need  not  be  stated,  whether  the  present  system  of  nomina- 
tion of  trial  judges  be  continued  or  whether  the  power  of  nominat- 
ing them  be  placed  in  the  hands  of  a  neutral  Government,  or 
whether  they  be  selected  by  lot.  We  can  readily  conceive  the 
selection  by  one  country  of  a  man,  who,  for  the  soundest  reasons, 
is  an  unfit  judge  so  far  as  the  contesting  nation  is  concerned,  yet 
to  challenge  him  under  present  conditions,  would  be  embarrassing 
and  probably  ineffective.  This  subject  up  to  the  present 
moment  has  received  scanty  discussion  and  yet  the  next  great 
international  arbitration  may  demonstrate  its  supreme  impor- 
tance. I  bespeak  for  this  matter  your  careful  consideration. 

Territorial  boundaries  have  often  been  a  fertile  source  of 
acrimonious  and  bloody  conflict.  The  Hague  Court,  has  not, 
it  is  true,  passed  upon  any  question  of  this  sort  of  large  importance. 
Many  such  cases  have  gone  to  the  arbitrament  of  neutral  nations, 


RALSTON  159 

or  of  specially  selected  arbitrators,  and  The  Hague  Court  in  the 
Grisbadarna  case  has  presented  one  of  the  latest  illustrations 
of  the  possibility  of  peaceful  adjustment  of  territorial  disputes. 

Are  national  insults,  or  what  are  assumed  to  be  such,  to  be 
wiped  out  only  by  war?  Must  the  blundering  of  officials  or  of 
the  populace,  mistakes  of  tact  and  silly  ebullitions  of  feeling,  be 
the  causes  of  infinite  loss  of  human  life,  destruction  of  property 
and  creation  of  debt  to  vex  future  generations?  Let  us  learn  a 
lesson  from  the  Casablanca  incident.  Here  German  patriotism 
was  offended  (as  Germany  believed)  by  the  harsh  treatment  of 
her  subjects,  in  the  infliction  of  which  treatment  disrespect  of 
the  German  flag  was  by  many  assumed  to  be  intended,  while 
France  found  her  military  occupation  and  authority  set  at 
defiance  by  a  German  consular  officer,  and  her  dignity  wounded. 
Thus  the  situation  was  such  as  to  create  tense  relations  between 
the  two  great  nations,  as  that  illusive  thing  called  "honor"  was 
involved,  something  to  which  The  Hague  Peace  Convention 
applied  only  so  far  as  the  nations  in  interest  might  see  fit  to  make 
it  applicable.  Fortunately  the  very  existence  of  the  Convention 
was  a  monition  to  settle  the  trouble  in  a  peaceful  way.  A  refer- 
ence was  had  to  The  Hague  and  a  result  attained  which  solaced 
the  self-love  of  both  nations. 

Is  it  a  question  of  the  interpretation  of  treaties?  Men  have 
been  willing  to  fight  over  their  meaning  rather  than  to  sacrifice 
one  jot  of  what  they  considered  the  rights  of  their  country. 
Their  misguided  patriotism,  instead  of  protecting  their  country 
through  peaceful  arrangement  or  adjustment,  has  drenched  the 
land  in  blood,  destroyed  homes,  and  burdened  future  genera- 
tions. When  three  nations  in  1903,  interpreted  the  Bowen 
protocols  in  one  way  and  eight  in  another,  peacefully  and  natur- 
ally reference  was  had  to  The  Hague  Court,  and  at  trivial  expense, 
considering  the  interest  of  the  question,  a  solution  was  reached, 
which,  whether  correct  or  otherwise,  was  more  righteous  than 
war. 


160  JUDICIAL   SETTLEMENT 

Another  condition  of  lesser  importance  in  the  construction  of 
treaties,  but  of  interest  as  touching  the  dignity  of  the  parties 
involved,  was  presented  by  the  Japanese  House  Tax  case,  in 
which,  as  I  have  indicated,  a  conclusion  was  reached  unfavorable 
to  Japan,  against  the  protest  of  her  representative  but  entirely 
acquiesced  in  as  a  controlling  arbitral  sentence.  And  once  more, 
France  and  England,  in  the  Muscat  case,  found  no  difficulty  in 
having  their  conflicting  rights  or  claims  solved  by  The  Hague 
Tribunal. 

Thus  we  see  that  in  principle,  The  Hague  has  faced  and  deter- 
mined several  classes  of  questions  which,  undetermined,  lead  to 
national  friction  and  often  ultimately  to  war.  But  it  may  be 
said  that  there  yet  remains  outside  of  the  questions  so  far  judici- 
ally adjusted,  a  large  field  as  to  which  courts  cannot  control. 
Questions  of  honor  and  national  independence  may  be  withheld 
from  judicial  solution  according  to  The  Hague  Peace  Convention. 
But,  as  we  have  seen,  questions  of  honor  or  supposed  honor, 
have  been  passed  upon,  as  in  the  Casablanca  case — a  case  pre- 
senting a  situation  which,  in  other  moods,  might  have  spelled  war. 
So  did  England  feel  that  her  national  honor  had  been  challenged 
when  it  was  first  proposed  to  submit  to  arbitration  the  Alabama 
claims.  And  yet  the  Geneva  Tribunal  offered  an  illustration  of 
the  triumph  of  commonsense  over  supersensitiveness  never 
equalled  before  or  since  its  time. 

We  should  not  forget  that  the  great  merit  in  The  Hague  Con- 
vention is,  not  that  through  it  may  be  solved,  well  or  ill,  differences 
at  issue,  but  that  its  very  existence  is  an  international  question- 
mark  whenever  the  national  passions  of  men  are  excited.  If  a 
nation  smart  under  a  sense  of  injury,  and  would  seek  to  avenge 
itself  upon  another  nation  and  slay  multitudes  of  men  innocent 
of  the  sins  or  offences  of  the  few  who  happened  to  be  in  power  or 
to  be  the  provoking  agents,  the  query  arises  in  the  minds  of 
increasing  thousands  whether  the  trouble  ought  not  to  be 
judicially  adjusted  under  the  provisions  of  The  Hague  Con- 


RALSTON  l6l 

vention;  and  the  inability  to  give  a  negative  answer  or  the 
inability  on  searching  self-examination  to  justify  one's  revenge- 
ful attitude,  alike  tend  towards  peace.  Thus  it  is  that  The 
Hague  Conventions  are  bringing  about  a  state  of  mind — a 
mental  condition — which  makes  war  hard,  and  peace  easy. 

I  am  not  saying  that  The  Hague  Peace  Conventions,  and  their 
already  glorious  history  mean  that  war  is  to  be  no  more.  For 
hundreds  of  years  we  have  been  improving  national  judicial 
methods,  and  have  not  reached  perfection.  For  a  like  period  we 
have  progressed  towards  internal  peace;  and  yet  we  have  thieves 
and  murderers.  Likewise  may  we  expect  for  years  to  come  that 
thieving  nations  and  brutal* nations  will  display  their  character- 
istics, and  even  that  ordinarily  well  behaved  nations  will,  under 
stress,  occasionally  fall  from  grace.  So  long  as  the  words  "  sphere 
of  influence,"  "vital  interests,"  "balance  of  power,"  "white 
mans'  burden"  remain  honored  phrases  in  national  and  inter- 
national language,  so  long  will  the  possibilities  of  wrong-doing 
hidden  by  them  continue  to  exist. 

Considerations  of  time  have  prevented  me  from  speaking  more 
at  length  with  regard  to  the  defects  of  past  systems  of  arbitra- 
tion and  of  the  existing  system  under  The  Hague  Peace  Conven- 
tion. Enough  has  been  said  even  in  a  discursive  manner  to  indi- 
cate that  the  latest  system  is  imperfect  and  other  speakers  can? 
and  doubtless  will,  point  out  more  at  length  its  defects.  But 
errors  of  detail  may  always  be  corrected;  the  important  thing  is 
to  keep  before  us  an  ideal  worthy  of  our  best  efforts.  This  ideal 
will  contemplate  an  international  court  no  less  free  from  social, 
political  and  official  pressure  than  are  our  courts  of  highest  juris- 
diction passing  upon  the  disputes  of  individuals;  a  court  where 
actions  may  be  initiated  at  no  special  expense  to  the  nations  liti- 
gating; a  court  whose  opinions,  given  as  free  from  national  or 
other  bias  as  may  be  humanly  possible,  will  stand  as  full,  impar- 
tial and  truthful  expositions  of  the  highest  teachings  of  interna- 
tional law. 


l62  JUDICIAL   SETTLEMENT 

THE  CHAIRMAN  (MARBURG)  :  Our  next  speaker,  whom  we  all 
know  so  well  and  so  pleasantly,  will  deal  with  the  subject, 
"Difficulties  in  the  Way  of  the  Success  of  our  Object." 

The  difficulties  I  fear  will  not  end  with  the  establishment  of  the 
court  we  have  in  mind.  The  long  task,  the  task  of  years,  if  not 
of  generations,  will  be  to  cultivate  a  public  opinion  which  will 
force  nations  into  that  court.  It  is  in  connection  with  this  work 
that  the  princely  gift  which  Mr.  Carnegie  has  just  made  will  be 
of  invaluable  service.  Disturbing  as  the  statement  may  prove, 
I  should  prefer  to  see  that  money  used  to  develop  new  fields — and 
ten  times  that  amount  could  be  advantageously  used  each  year 
in  this  country  alone  in  the  work  of  cultivating  public  opinion 
on  this  great  and  far-reaching  subject — in  preference  to  having  it 
go  into  the  coffers  of  our  existing  societies.  If  it  does  go  to  them, 
it  should  certainly  be  coupled  with  the  condition  that  the  present 
support  which  these  societies  receive  should  be  continued,  so  that 
the  fund  may  be  a  real  addition  to  the  resources  available  for  this 
cause  and  may  not  be  dissipated  in  simply  supplanting  what  we 
already  have. 

It  gives  me  great  pleasure  to  present  Mr.  Henry  B.  F.  Macfar- 
land,  of  Washington,  D.  C. 

DIFFICULTIES   IN  THE  WAY   OF  THE   SUCCESS   OF 

OUR  OBJECT 

HENRY  B.  F.  MACFARLAND 

Mr.  Chairman,  Ladies  and  Gentlemen :  I  shall  take  a  mo- 
ment of  my  precious  time,  especially  as  I  understand  we  shall 
all  have  leave  to  print,  to  congratulate  us  all  upon  sitting  this 
morning  under  the  presidency  of  the  founder  of  this  society, 
which  has  already  in  its  short  career  accomplished  so  much;  and 
upon  meeting  in  this  historic  room,  made  historic  by  the  two  great 
national  conferences  in  behalf  of  international  arbitration  which 


MACFARLAND  163 

have  been  held  here  within  the  last  decade;  and  upon  the  pres- 
ence of  a  representative  of  the  Dominion  of  Canada,  reminding 
us  of  our  relation  with  that  country  and  of  the  approaching  cele- 
bration of  the  century  of  peace  with  Great  Britain. 

Mr.  Thomas  Nelson  Page  said  to  me  on  yesterday  that  I  had 
the  most  fruitful  topic  on  the  whole  program  and  I  really  ought 
to  have  an  hour  instead  of  twenty  minutes;  but  I  realize  that  with 
a  program  full  of  lawyers  it  is  asking  a  great  deal  to  suppose  any- 
body would  have  adequate  tune. 

It  is  not  true  that  money  is  the  root  of  all  evil.  The  Bible  did 
not  say  so,  and  the  revised  version  does  not  even  say  that  the 
love  of  money  is  the  root  of  all  evil,  but  that  is  it  a  root  of  all  evil. 
Of  course  we  recognize  that  it  is  selfishness  that  is  the  root  of  all 
evil,  so  far  as  men  are  concerned.  Therefore  the  conflicting  inter- 
ests of  the  nations,  always  more  selfish  than  the  best  of  their  citi- 
zens, raise  most  of  the  difficulties  in  our  way.  Take  the  next  step 
in  advance.  We  all  believed  the  permanent  tribunal  at  the 
Hague  a  vast  improvement  as  contrasted  with  other  tribunals  of 
a  similar  character.  We  next  secured  an  international  prize 
court,  which  is  a  great  step  in  advance  even  if  it  is  to  come  into 
activity  only  with  war;  for  it  establishes  in  effect  the  principle  of 
what  we  more  greatly  desire;  and  it  afforded  the  opportunity  for 
our  own  government,  at  the  suggestion  of  the  President  of  this 
society,  to  endeavor  by  a  transformation  of  that  international 
prize  court  to  secure  at  once  the  international  court  of  arbitral 
justice  which  the  last  Hague  conference  planned. 

Having  secured  these  two  great  steps,  international  arbitra- 
tion and  an  international  prize  court,  our  government,  working 
with  other  leading  governments,  is  endeavoring  to  secure  an  biter- 
national  court  of  arbitral  justice  which  we  hope — and  here  comes 
our  object,  as  I  understand  it — will  be  only  preparatory  to  a  true 
high  court  of  justice  for  the  whole  world  without  the  limitation 
which  the  qualifying  word  "arbitral"  suggests,  a  court  of  lawyers, 
a  court  of  judges,  not  hampered  by  any  considerations  of  diplo- 


164  JUDICIAL   SETTLEMENT 

macy  which  must  always  attach,  even  to  an  international  court  of 
arbitral  justice,  a  court  which  shall  advance  beyond  arbitration 
to  that  ideal  so  well  presented  by  Mr.  Wambaugh  in  his  paper 
this  morning. 

This  has  been  the  ideal  of  all  great  minds  giving  thought  to 
this  subject;  that  we  should  have  a  supreme  court  of  the  nations 
similar  in  many  respects  to  the  Supreme  Court  of  the  United 
States.  It  is  well  understood  that  our  government  contended  for 
just  such  a  court  at  the  last  Hague  conference,  and  that  it  simply 
acquiesced  in  the  adoption  in  principle  of  the  court  of  arbitral 
justice  because  it  could  not  accomplish  any  more  in  that  line  at 
that  time.  Some  of  us  will  live  to  see  an  international  high  court 
of  justice  in  the  full  sense,  with  full  jurisdiction  for  the  settle- 
ment of  international  disputes  by  strictly  judicial  means. 

Meanwhile,  we  must  overcome  the  difficulties  that  have  ap- 
peared in  the  path  of  a  more  limited  project  for  a  tribunal  of 
arbitral  justice. 

While  the  forty-four  nations  represented  at  the  last  conference 
accepted  in  principle  the  proposition  for  the  international  court 
of  arbitral  justice,  they  were  not  able  to  agree  upon  the  number  or 
the  character  of  the  judges  of  such  a  court,  and  they  have  not  as 
yet  been  able  to  agree  in  the  diplomatic  negotiations  which  have 
followed  since,  although  we  believe  they  will  agree,  and  that  at  a 
comparatively  early  day.  Here  lies  the  first  and  greatest  imme- 
diate difficulty  in  our  way.  It  is  obviously  impossible  to  have  a 
court  made  up  of  representatives  of  all  the  nations,  for  it  would 
be  unwieldy  and  impracticable,  like  a  Supreme  Court  of  the 
United  States  of  forty-six,  members;  although  it  must  be  remem- 
bered that  in  the  discussion  of  the  Supreme  Court  of  the  United 
States  the  then  thirteen  States  were  considered,  with  all  their  ideas 
of  sovereignty  provided  for  in  the  composition  of  the  Senate, 
as  having  possible  rights  to  be  represented  in  the  Supreme  Court 
of  the  United  States.  But  the  interests  of  the  large  nations 
and  the  interests  of  the  small  nations  are  so  diverse  as  to  make 


MACFARLAM)  165 

an  agreement  between  them  as  to  the  constitution  of  the  court 
extremely  difficult.  The  various  plans  proposed  at  the  Hague 
Conference,  which  I  shall  not  attempt  to  give  in  detail  now,  are 
all  objected  to  by  the  larger  nations  or  the  smaller.  All  agree  that 
a  panel  of  one  hundred  is  out  of  the  question.  All  agree  in  fact 
that  a  court  of  forty-four  judges  is  out  of  the  question.  But  as 
yet  there  is  no  agreement  as  to  what  may  be  done. 

It  would  seem  that  it  may  be  necessary  to  set  up  an  international 
court  of  arbitral  justice  without  first  obtaining  the  participation 
of  the  smaller  nations  at  all.  It  is  believed  that  if  one  half  the 
nations,  including  all  the  largest  ones — and  that  means  those 
most  effective  in  making  war — can  agree  to  refer  their  disputes 
to  settlement  by  such  a  court,  they  would  select  judges  of  such 
high  character  as  to  command  the  respect  and  ultimately  secure 
the  adherence  of  the  other  nations,  even  though  the  latter  did 
not  secure  the  representation  they  desired  in  the  court. 

It  is  hoped  that,  like  the  Supreme  Court  of  the  United  States, 
which  at  first  had  to  wait  a  long  time  for  suitors,  five  years,  until 
Chisholm  against  Georgia  came  along,  it  would  gradually  draw 
to  itself  the  confidence  of  the  nations  and  by  its  personnel  and  by 
its  decisions  and  opinions  become  actually  the  resort  of  all  nations 
for  judicial  settlements. 

Another  difficulty  common  to  all  plans  for  the  judicial  settle- 
ment of  international  disputes  grows  out  of  the  jealousies  and 
suspicions  of  professional  diplomatists  shared  more  or  less  by 
their  responsible  governments.  This  has  been  in  part  met  by 
the  satisfactory  result  of  most  of  the  international  arbitrations 
so  far  held  and  the  gradual  growth  of  respect  for  such  methods 
of  settlement,  especially  in  the  public  opinion  of  the  world,  which 
is  in  advance  of  the  general  opinion  of  governments. 

This  difficulty,  however,  has  delayed  the  agreement  even  of 
those  powers  who  are  assured  of  their  share  in  the  personnel  of 
the  court,  and  has  to  be  reckoned  with  in  any  steps  that  are  taken 
to  secure  it.  Human  nature  appears  in  that  as  in  every  effort 
to  secure  what  we  desire. 


1 66  JUDICIAL  SETTLEMENT 

Minor  difficulties  are  suggested  as  to  the  professional  and  tech- 
nical fitness  of  the  judges.  In  the  case  of  the  prize  court  that  is 
secured  by  the  provision  that  they  shall  be  learned  in  adrriralty 
law,  but  there  is  a  question  raised  by  high  authority  as  to  whether 
the  qualifications  required  of  the  judges  of  the  proposed  interna- 
tional court  of  arbitral  justice  will  always  secure  trained  lawyers. 
There  is  a  question  as  to  salaries  and  allowances,  which,  as  pro- 
vided by  the  Hague  Conference,  are  so  modest  as  to  make  some 
doubt  whether  they  would  be  sufficiently  attractive.  It  is  be- 
lieved, however,  that  whatever  the  treaty  requirements  might  be, 
only  jurists  of  the  highest  order  would  be  selected  as  judges,  and 
that  the  honors  and  opportunities  of  such  a  post  would  outweigh 
any  deficiencies  in  the  proposed  remuneration. 

Judge  Baldwin,  shortly  to  be  Governor  of  Connecticut,  to  the 
great  gratification  of  us  all,  has  wisely  suggested  that  a  special 
conference  of  all  the  powers  might  be  held  for  the  sole  purpose  of 
considering  in  a  frank  spirit  of  mutual  confidence  the  selection  of 
say  fifteen  judges  on  nominations  previously  made  by  each  power, 
which  would  also  be  able  to  settle  all  questions  of  minor  difficul- 
ties. In  this  and  in  similar  ways,  if  the  principal  nations  would 
determine  to  do  it  with  hearty  good  will,  all  these  difficulties  can 
be  removed. 

Back  of  these  questions  is  that  large  one  common  to  any  con- 
sideration of  judicial  or  arbitral  settlement  of  international  dis- 
putes; that  is,  as  to  the  enforcement  of  the  decree  of  the  court. 
The  idea  popular  still  in  some  quarters  of  an  international  police 
force  made  up  from  the  army  and  navy  of  different  nations  no 
longer  appeals  to  all  of  us.  Many  of  us  are  inclined  to  depend 
more  on  what  stands  back  of  enforcement  of  law  in  every  country, 
the  public  opinion  of  its  citizens. 

Senator  Root  has  well  expressed  what  we  believe  as  to  the  real 
sanction  and  support  of  international  law,  which  derives  its  real 
authority  from  international  public  opinion.  The  ostracism  of 
the  nation  which  had  offended  the  conscience  of  the  world  by 


MACFARLAND  167 

refusing  to  obey  the  decree  of  the  international  court  of  arbitral 
justice,  to  which  it  had  submitted  its  claims,  would  be  more  effec- 
tive than  any  other  coercive  action  that  might  be  taken  by  the 
conference  of  the  other  powers. 

Now  that  the  nineteenth  century  has  made  the  world  one 
neighborhood  and  the  twentieth  century  is  making  it  a  brother- 
hood, the  most  backward  nation  understands  that  it  cannot  live 
without  the  family  and  that  it  must  keep  the  peace  in  order  to 
live  within  the  family,  and  at  the  best  advantage  to  itself. 

All  difficulties  in  our  way  are  yielding  to  proper  treatment. 
None  of  the  obstacles  are  insurmountable.  The  progress  already 
made,  now  that  the  dream  of  the  poet  has  become  the  plan  of 
the  statesman,  is  a  prediction  of  complete  success. 

The  processes  of  history,  like  processes  of  nature,  often  come 
to  fulfilment  quickly  after  long  seeming  delay.  The  old  order 
suddenly  gives  place  to  the  new,  as  the  once  world-wide  Spanish 
colonial  empire  vanished  from  the  map  in  a  day  at  the  touch  of 
war.  In  the  midst  of  patience  and  persistent  effort,  at  the  oppor- 
tune moment  the  change  comes  rapidly,  coming  perhaps  like  the 
Kingdom  of  Heaven  without  observation. 

THE  CHAIRMAN  (MARBURG)  :  Professor  Charles  Noble  Gregory 
has  come  to  Washington  from  the  State  of  Iowa  to  speak  at  this 
Conference.  His  topic  reminds  us  of  the  vast  and  very  rapid 
changes  that  are  going  on  around  us  to-aay.  Those  of  us  who 
have  passed  over  the  brow  of  the  hill  are  made  to  feel  that  we 
do  indeed  belong  to  a  past  generation,  when  we  see  such  topics 
presented  for  discussion  in  a  gathering  like  this. 

I  take  pleasure  in  introducing  Professor  Gregory. 


i68 


JUDICIAL   SETTLEMENT 


AVIATION  AS  AFFECTING  THE  JUDICIAL  SETTLE- 
MENT OF  INTERNATIONAL  DISPUTES 

CHARLES   N.   GREGORY 

The  nations  of  the  earth  during  the  periods  which  history 
reveals  have  been  confined  in  their  operations  and  intercourse 
to  the  immediate  surface  of  the  earth,  delving  a  little  below  and 
lifting  a  trifle  above,  but  in  the  main  operating  upon  the  single 
plane  of  the  soil  itself. 

Within  the  past  six  years  and  especially  within  the  past  eight- 
een months,  there  has  been  substituted  by  the  sudden  develop- 
ment of  airships,  a  new  domain  of  human  transport  and  opera- 
tion. The  atmosphere  is  estimated  to  extend  about  one  hundred 
miles  above  the  earth's  surface.  Mr.  R.  P.  Hearne  in  his  new  edi- 
tion of  his  Aerial  Warfare  which  he  re-christens  Airships  in  Peace 
and  War,  prints  the  following  table  of  the  maximum  attainments 
of  dirigible  balloons  and  aeroplanes  :* 


DISTANCE. 

DURATION. 

SPEED. 

HEIGHT. 

Dirigible  Balloons  

Miles. 
840 

Hours. 

C7 

Miles,  per  hour. 
•?O 

Altitude. 

"J2OO 

Aeroplanes  

112 

4.7 

ItOO 

Hearne  further  records  the  fact  that  balloons,  apparently  not 
dirigible,  have  risen  to  30,000  feet  and  the  belief  that  airships 
must  operate  at  elevations  between  100  and  10,000  feet. 

The  statistics  of  this  recent  work  are  already  obsolete.  Thus, 
to  cite  but  three  examples,  Messrs.  Post  and  Hawley  in  the  diri- 
gible balloon,  "The  American,"  on  October  17  last,  sailed  from 
St.  Louis,  Missouri,  to  Sand  Bank  Lake,  Canada,  a  distance  of 
1355  miles,  rising  to  an  elevation  of  16,000  feet.2 


1Airships  in  Peace  and  War,  p.  75. 

*See  Scientific  American,  November  5,  1910. 


GREGORY  169 

Mr.  J.  Armstrong  Drexel  at  Philadelphia,  November  23  last, 
rose  on  a  Bleriot  monoplane  to  the  height  of  9,970  feet  which  was 
accepted  as  a  new  world's  record  by  the  chairman  of  the  National 
Association  of  Aero  Clubs.3  And  M.  Barrier  at  Memphis,  Decem- 
ber 7,  1910,  established  a  new  world's  record  for  speed  in  flying 
over  16  miles  in  10  minutes  55?  seconds,  being  at  the  pace  of  87.93 
miles  an  hour,  surpassing  by  some  22  miles  per  hour  the  previous 
record.4 

The  progress  in  all  that  makes  these  airships  important — in 
time,  distance,  elevation,  control  of  flight  and  in  carrying  power- 
is  so  rapid  and  amazing  that  it  is  almost  useless  to  confine  our 
attention  to  past  records,  knowing  that  they  are  mere  intima- 
tions of  that  which  a  few  months,  even  weeks,  will  greatly  exceed. 

We  must  assume  that  international  communication  which 
from  the  beginning  of  the  world  has  been  confined  to  the  surface 
of  the  earth  is  now  possible  for  a  mile  or  more  above  the  earth  at 
speeds  of  from  30  to  nearly  90  miles  an  hour,  in  airships,  carrying 
by  night  or  by  day,  from  one  man  to  an  entire  company  of  sol- 
diers with  efficient  artillery  or  some  thousand  pounds  of  freight. 

This  situation  plainly  requires  elaborate  revision  and  extension 
of  preexisting  laws,  for  the  protection  of  human  life,  of  property 
rights  and  of  national  control  and  jurisdiction. 

Analogies  are  found  in  the  common  law  or  international  law 
of  the  sea,  but  they  are  made  incomplete  and  often  merely  con- 
fusing from  the  facts  that  the  bottom  of  the  high  or  open  sea  is, 
like  the  sea  itself,  common  to  all  and  not  subject  to  ownership 
or  habitation  by  any  persons  or  nations,  and  that  the  law  of  gravity 
operates  so  much  more  dangerously  through  aerial  space  than 
through  the  waters  of  the  ocean. 

The  Hague  Conferences  have  recognized,  more  than  once,  the 
availability  of  air  craft  hi  war.  Thus  the  Conference  of  1899 

*See  newspapers  November  24. 
*See  newspapers  December  8. 


1 70  JUDICIAL  SETTLEMENT 

agreed  "to  prohibit  for  a  term  of  five  years,  the  launching  of 
projectiles  and  explosives  from  balloons  or  by  other  new  methods 
of  a  similar  nature." 

This  was  renewed  hi  1907. 

The  first  was  ratified  by  all  but  four  of  the  nations  represented. 

The  second  has  failed  of  ratifications  by  seventeen  of  such 
nations,  including  France,  Germany,  Italy,  Japan,  Mexico,  and 
Russia.8 

Such  operations  have  become  practicable  and  an  increased 
number  of  nations  declines  to  forego  them. 

The  Second  Conference  moreover  provided,  "The  attack  or 
bombardment,  by  whatever  means,  of  towns,  villages,  dwellings, 
or  buildings  which  are  undefended  is  prohibited." 

As  is  well  known  the  phrase  "by  whatever  means"  was  added 
so  as  to  include  bombardment  by  airships.6  And  because  as  the 
convention  was  applicable  to  land  war,  it  might  otherwise  be 
denied  that  it  applied  to  aerial  war.7 

Moreover  the  Declaration  of  London  of  February  26,  1909, 
provides  that  "balloons  and  flying  machines  and  their  distinctive 
component  parts  together  with  accessories  and  articles  recog- 
nizable as  intended  for  use  in  connection  with  balloons  and  flying 
machines  .  .  .  may  be  treated  as  contraband  of  war,  under  the 
name  of  conditional  contraband."8 

Already  conferences  and  congresses  have  been  called  and  held 
which  have  discussed  and  drafted  proposed  aerial  codes. 

An  International  Congress  for  this  purpose  was  held  hi  Paris 
in  June  last  at  which  nineteen  powers  were  represented.9 

The  draft  of  such  a  code  was  submitted  and  referred  at  the  last 
meeting  of  the  American  Bar  Association.10 

6See  Kuhn    in    Am.    J.  Intern.  Law,  January,  1910,  p.  119,  citing  Scott's  Hague 
Peace  Confer.,  vol.  II,  p.  161  and  p.  531. 
•Bordwell's  Law  of  War,  pp.  286-7. 
7Kuhn:  Am.  Journ.  Intern.  Law,  January,  1910,  p.  121. 
*See  Am.  Journ.  Intern.  Law  Sup.,  July,  1909,  p.  198. 
•Baldwin  in  Mich.  L.  Rev.,  November,  1910,  p.  24. 
10See  MLh.  L.  Rev.,  November,  1910,  p.  25,  per  Simeon  E.  Baldwin. 


GREGORY  171 

The  Institute  of  International  Law  has  at  least  twice  elaborately 
discussed  the  subject,  once  at  its  meeting  in  Paris  during  the  pres- 
ent year.  An  international  committee  on  the  legal  problem  of 
aviation  has  been  lately  constituted  in  France  and  since  January, 
1910,  the  Revue  Juridique  Internationale  de  la  Locomotion  Ae- 
rienne  has  appeared  monthly.11 

L'Aerophile  the  official  bulletin  of  the  Aero  Club  of  France  is 
published  in  Paris  and  Aeronautics  edited  by  Major  Baden 
Powell  in  London;  American  Aeronautics  in  New  York  and  The 
Aero  a  weekly  in  St.  Louis. 

The  periodicals  teem  with  elaborate  and  ingenious  articles  on 
the  Law  of  the  Air  from  scholars  and  public  officials  and  during 
the  past  week  my  friend,  Mr.  H.  D.  Hazeltine,  of  Cambridge 
University,  began  a  course  of  lectures  on  this  novel  topic  at  Kings 
College,  London.12  As  illustrating  the  established  character  of 
this  business  second  hand  aeroplanes  are  already  advertised  for 
sale  in  London  with  or  without  engines."13 

Among  physicists  and  mechanical  engineers,  statesmen,  mili- 
tary and  naval  men  and  lawyers,  the  new  art  has  stimulated  the 
most  intense  interest.  It  can  not  be  disregarded  by  the  disciples 
of  international  peace. 

M.  Charles  Richet  predicts  that  within  ten  years  there  will  be 
as  many  aeroplanes  as  automobiles.  He  bids  us  remember  that 
Napoleon,  in  1805,  rejected  Fulton's  steamboat  as  a  mere  play- 
thing (un  jou  jou)  and  that  M.  Thiers  (who  died  in  the  midst  of 
his  political  achievements,  in  1877)  at  the  time  of  the  first  railroads 
said  with  a  profound  conviction  "Do  you  believe  that  they  can 
ever  replace  the  stage  coaches  (les  diligences}?"14 

Of  course  all  this  enormous  physical  change  in  the  possibilities 
of  international  intercourse  profoundly  affects  international  rela- 
tions in  both  peace  and  war. 

"See  Am.  J.  Int.  L.,  July,  1910,  pp.  696-7. 
uLaw  Times,  November  19,  1910,  p.  52. 
"See  Aeronautics,  November,  1910. 
uPour  I' Aviation,  pp.  165-6. 


172  JUDICIAL   SETTLEMENT 

It  is  our  business  to  consider  how  far  it  influences,  favorably  or 
otherwise,  those  amicable  relations  of  mutual  justice  between  na- 
tions which  we  are  organized  to  promote  and  how  far  it  influences 
the  success  of  our  appeals  for  their  support. 

In  so  far  as  it  assists  intercourse  to  increase  ease,  speed  and 
perhaps  to  reduce  expense,  it  is  undoubtedly  a  pacifying  force. 
Cheap  postage,  cheap  cables,  and  wireless  systems,  the  printing 
press  and  its  products,  the  steamship  and  the  railway  which  bring 
throngs  of  minds  or  bodies  together,  these  all  make  war  more 
repugnant  and  peace  more  essential  to  men. 

This  writer,  speaking  lately  at  a  dinner  of  the  city  of  London  in 
the  Guildhall  before  an  international  assembly,  ventured  to  quote 
a  little  sentimental  verse : 

None  knew  thee  but  to  love  thee, 
Nor  named  thee  but  to  praise; 

and  to  say  that  it  was  written  of  a  poet,  but  that  he  applied  it  to 
the  whole  human  race.  We  could  not  know  one  another,  he  said, 
without  spontaneous  friendship  and  esteem  and  he  was  rewarded 
by  the  warmth  of  the  response  of  that  great  and  cosmopolitan 
company. 

M.  d'Estournelles  de  Constant,  that  eloquent  and  discrkninat- 
ing  advocate  of  all  good  relations  between  men  and  nations,  has 
spoken  and  written  strongly  in  favor  of  government  support  for 
airships.  He  hails  the  airships  as  realizing  the  dream  of  himself 
and  his  friends.  He  thinks  they  will  equalize  the  defenses  of 
poorer  states,  and  if,  due  to  the  action  of  these  inventions,  war 
becomes  such  an  object  of  disgust  and  dismay  to  the  peoples  that 
it  will  cease  to  be  a  temptation  or  diversion  alike  to  governments 
the  most  cynical  or  the  most  blind,  he  says  that  it  seems  to  him 
that  this  excess  of  horror  brings  us  more  of  peace  than  of  despair.^ 

The  frontier  through  which  intercourse  was  possible  was  but 
little  over  the  height  of  a  man  and  a  horse,  but  call  it  even  50 

KPour  I' Aviation,  p.  207. 


GREGORY  173 

feet.  Now  it  is  expanded  at  a  very  low  estimate  to  5,000  feet 
which  means  a  hundred  fold.  The  zone  of  approach  for  attack, 
the  defense  to  be  watched,  guarded,  patrolled  by  night  and  by 
day,  is  one  hundred  times  as  great  as  it  was  a  few  months  ago. 

One  of  the  most  striking  results  in  peace  is  that  the  enforce- 
ment of  customs  regulations  at  least  as  to  all  the  more  valuable 
and  less  bulky  articles  becomes,  as  many  writers  think,  substan- 
tially impossible. 

Turner  in  his  book  on  Aerial  Navigation  of  To-day  fully  recog- 
nizes the  service  to  smugglers  of  a  swift  and  trackless  vehicle  like 
an  airship  (p.  277),  and  shows  that  the  somewhat  kindred  inven- 
tion of  the  motor  car,  as  is  well  known,  is  used  extensively  for 
smuggling  on  certain  European  frontiers  and  suggests  that  flying 
machines  will  be  quickly  utilized  in  the  same  way  (p.  236).  He 
shows  that  a  kite  was  successfully  used  to  import  alcohol  into 
Paris,  that  vigilant  city,  without  paying  the  octroi. 

As  M.  Richet  declares,  airships  substantially  abolish  customs 
duties,16  and  Major  Baden  Powell  reaches  the  same'conclusion.17 

A  cargo  of  silk  or  laces,  of  tobacco,  wine,  articles  of  silver  or 
gold,  or  of  jewels,  for  example,  can  be  transported  in  a  night  by  a 
machine  of  small  cost  through  the  trackless  air,  from  the  heart  of 
one  nation  to  the  heart  of  another,  and  the  escaping  of,  perhaps, 
a  60  per  cent  duty  will  save  the  cost  of  the  machine  several  times 
over.  Contraband  articles  can  be  dropped  at  agreed  places,  there 
to  be  found  by  confederates.  As  Judge  Simeon  E.  Baldwin  has 
pointed  out,  the  airship  "will  be  seized  as  an  aid  in  evil  doing  by 
smugglers,  spies,  burglars,  by  criminals  of  all  sorts  flying  from 
justice  and  for  illicit  trade  of  every  kind.  It  flies  over  the  borders 
of  one  sovereignty  into  those  of  another  as  swiftly  and  irrespon- 
sibly as  a  bird."18 

"See  M.  Richet,  Pour  I' Aviation,  p.  167. 

"See  Baden  Powell  in  National  Rev.,  March,  1909,  pp.  78,  82,  quoted  by  Kuhn;  Am. 
JournJnt.  L.,  January,  1910,  p.  tag. 

l*Atn.  Journ.  Int.  L.,  January,  1910,  p.  95. 


174  JUDICIAL  SETTLEMENT 

Because  it  so  vitally  affects  international  commerce  and  the 
revenue  therefrom  it  must  be  the  subject  of  international  regula- 
tion. 

So  the  codes  proposed  provide  for  registration  of  air  ships  and 
licensing  of  them,  for  lights  and  numbers  to  be  displayed,  for 
rules  of  navigation,  elaborated  like  those  for  ships  at  sea,  and  that, 
like  such  ships,  air  ships  shall  operate  only  under  the  charge  of 
licensed  aeronauts.19 

Some  codes  require  bond  from  the  owner  or  charterer  for  any 
damage  caused  by  the  operation  of  the  air  ship  and  make  any 
violation  of  the  code  penal. 

But  only  a  fraction  of  the  contingencies  to  be  provided  for 
have  been  thought  out. 

The  French  Minister  of  Public  Works  has  had  under  considera- 
tion a  draft  of  "rules  of  the  air"  and  the  regulations  proposed 
are  not  confined  to  the  airships,  but  extend  to  reciprocal  obliga- 
tions, as  that  "owners  of  lofty  objects  such  as  chimneys  should 
mark  their  position  by  a  light."20 

That  body  of  eminent  specialists,  the  Institute  of  International 
Law,  pronounced  for  the  freedom  of  the  air,  but  the  improvidence 
of  such  a  rule  is  shown  by  my  friend,  Mr.  Arthur  Kuhn,  who 
points  out  that  under  this  rule  "the  air  space,  even  over  neutral 
territory,  would  be  as  much  a  field  for  war  operations  as  the  high 
seas."  Certainly  it  can  not  be  tolerated  that  England  and  Ger- 
many, if  they  unhappily  ever  disagree,  can  fight  out  their  battles 
over  Brussels  or  Paris. 

Mr.  Kuhn  also  opposes  provisions  suggested  giving  exclusive 
jurisdiction  over  air  ships  and  their  crews  and  cargos  while  in 
the  air  to  the  home  government  of  the  ship.  He  proposes  much 
more  plausibly,  by  analogy  to  jurisdiction  over  foreign  vessels 
in  territorial  waters,  a  concurrent  jurisdiction  in  the  home  govern- 
ment and  in  the  country  whose  territory  the  air  ship  is  above. 

1BSee  Mich.  Law  Rev.,  November,  1910,  p.  25,  for  proposed  United  States  Statutes. 
KLaw  Times,  London,  April  2,  1910,  p.  486  and  p.  498. 


GREGORY  175 

In  war  the  airship  will  serve  a  great  purpose. 

First  in  spying,  or  scouting.  The  commander  will  be  able  by 
wireless  communication  with  these  winged  observers  to  conduct 
his  operations  with  the  aid  of  literally  a  birdseye  view  of  the  whole 
field. 

Turner  shows  that  each  commander  will  know  all  the  other  is 
doing  and  "stalemates"  may  often  result  (p.  224)  and  the  Scien- 
tific American  (October  22,  1910)  points  out  that  smokeless  pow- 
der and  long-range  rifles  had  made  scouting  difficult,  but  now  air 
ships  make  secrecy  impossible  and  war  like  a  game  of  chess,  where 
each  commander  knows  what  his  opponent's  next  move  must  be. 
Secretary  of  War  Dickinson  has  just  recommended  that  our  own 
Signal  Corps  be  properly  equipped  in  this  respect. 

As  M.  Hearne  shows,21  at  an  elevation  of  1,000  feet  objects  can 
be  sighted  for  33  miles  and  at  the  elevation  of  5280  feet  (i  mile) 
they  can  be  sighted  96  miles.  He  says:  "In  fact,  the  airship 
should  have  a  most  revolutionary  effect  on  warfare,  since  it  well- 
nigh  destroys  strategy,  and  those  surprise  movements  which  have 
been  developed  to  such  a  science  in  modern  warfare.  Practically 
no  move  can  escape  the  aerial  scouts,  and  reports  to  headquarters 
will  be  made  with  astonishing  rapidity.  Thus  even  the  develop- 
ment of  airships  as  scouting  machines  will  cause  the  whole  war 
game  to  be  remodeled." 

Concealment,  surprise,  strategy,  are  minimized  or  eliminated. 
Though  some  writers  think  otherwise,  I  submit  that  this  reduces 
the  game  of  war  more  than  ever  to  a  trial  of  strength  and  tends  to 
give  the  victory  to  the  heaviest  battalion. 

It  has  been  thought  that  the  efficiency  and  cheapness  of  aero- 
planes in  war  meant  a  new  lease  of  life  to  the  smaller  powers.  I 
submit  that  it  means  the  opposite  because  of  the  reason  given 

above. 

The  weaker  force  is  exposed  in  all  its  weakness  and  its  every 
device  is  transparent.  The  stronger  and  better  equipped  force 

11  Airships  in  Peace  and  War,  p.  131. 


176  JUDICIAL  SETTLEMENT 

must  win.  This  means  more  than  ever  the  dominance  of  the 
great  and  rich  nations,  and  Mr.  Lecky  long  since  taught  us  that 
they  are  the  commercial  and  therefore  the  peaceful  nations. 

I  submit  that  the  increased  control  of  the  great  powers  will  not 
unfavorably  affect  the  world. 

The  aerial  scouting  enables  the  finding  of  submarine  vessels, 
mines  and  defenses  which  are,  from  the  air  ships,  as  visible  as  a 
fish  to  a  sea  bird  and  this  also  reduces  the  efficiency  of  the  de- 
fenses upon  which  smaller  countries  have  so  much  relied  to 
equalize  the  struggle  with  their  greater  opponents. 

Secondly,  the  terrific  effectiveness  of  air  ships  in  war  operating 
by  the  discharge  of  explosives  upon  the  ships,  and  squadrons, 
forts,  arsenals,  points  of  supply  or  transport  of  the  enemy  and 
even  by  reducing  to  helplessness,  panic  and  physical  distress  the 
principal  cities  of  the  enemy  by  exploding  water  works,  lighting 
works,  railroad  stations,  public  buildings,  without  making  direct 
war  on  the  civil  population,  seems  established. 

Forts  have  been  largely  built  to  resist  attack  from  the  sea.  The 
airship  can  attack  from  above  and  from  the  land  side;  therefore 
these  costly  structures  must  be  largely  reconstructed.  The  old 
type,  however  elaborate  and  new,  is  obsolete  and  must  be  aban- 
doned or  almost  wholly  built  over  at  a  cost  naturally  increased 
by  the  attempt  to  guard  against  attack  from  such  widely  varied 
and  novel  directions.  This  is  a  vast  new  burden  for  the  main- 
tenance of  our  armed  neutrality. 

Notwithstanding  the  opposite  opinion  expressed  in  England  by 
the  President  of  the  Chemical  Society  on  October  25,"  warships 
can  be  attacked  with  remarkable  effect  by  air  ships  as  was  shown 
in  the  recent  aviation  meet  at  Baltimore,  November  10,  1910, 
when  Mr.  Latham  and  Mr.  Drexel  in  their  aeroplanes  in  six 
attempts  each  with  the  chalk  bombs  dropped  them  within  the 
outline  of  a  battleship  every  time.  One  bomb  went  down  the 

^Aeronautics,  November,  1910,  p.  168. 


GREGORY  177 

ship's  funnel  and  would,  if  an  actual  explosive,  have  quite  cer- 
tainly destroyed  the  vessel.  Of  course  the  airships  will  be  ex- 
posed to  the  fire  of  ships,  forts  or  land  forces,  but  how  effective 
that  will  prove  is  most  uncertain. 

Experiments  at  Lydd  seem  to  prove  that  a  balloon  can  be  almost 
riddled  with  bullets  in  its  lower  part  yet  remain  floating  with  its 
buoyance  but  little  impaired  on  account  of  the  upward  pressure 
of  the  gas.23 

And  in  firing  a  1 3-pound  field  gun  at  a  balloon  at  an  elevation 
of  1,000  feet  and  a  range  of  4,000  yards,  the  balloon  was  only  struck 
by  the  seventeenth  shot.24 

There  is  great  difficulty  in  getting  the  range  of  a  rapidly  mov- 
ing object  a  ta  considerable  elevation  and  almost  directly  above.25 

Esnault  Petrie  has  shown  moreover  that  the  column  of  air 
thrown  back  by  the  flying  machine,  powerfully  deflects  the  bul- 
lets fired  at  it  from  behind,  and  makes  an  injury  to  it  by  firing 
from  that  direction  very  difficult.26 

The  new  Krupp  type  of  aeronautic  artillery  is  said  to  have  a 
vertical  range  as  high  as  11,500  metres.27 

The  various  types  have  been  fully  illustrated,28  and  that  great 
maker  offers  an  armored  automobile  capable  of  a  speed  Of  40 
miles  an  hour  mounted  with  a  gun  designed  for  elevated  fire  to  be 
used  in  defense  against  aerial  attacks.  This  was  adopted  by  the 
German  government  in  igog.29  And  automobiles  mounting 
elevated  fire  guns  have  been  lately  tested  for  defenses  against  air 
ships  by  a  military  academy  with  very  encouraging  results.10 

But  a  vertical  fire  is  as  damaging  to  the  parties  firing  as  to 
those  fired  at.  Every  missile  discharged  returns  with  terrific  force 

"Turner,  p.  214. 

••Turner,  p.  214. 

"Turner,  p.  215. 

"Turner,  p.  215. 

"Am.  Journ.  Intern.  L.,  January,  1910,  p.  113. 

MSee  Scientific  American,  November  12,  1910,  pp.  305,  306,  and  307. 

**See  Turner's  Aerial  Navigation  of  To-day,  p.  215. 

^Scientific  American,  July  30,  1910,  p.  81. 


178  JUDICIAL  SETTLEMENT 

by  the  action  of  gravity  nearly  to  the  place  from  which  it  was 
discharged.  They  illustrate  the  truth  of  the  childish  couplet — 

What  goes  up  must  come  down 
On  your  head  or  on  the  ground. 

As  Hearne  has  pointed  out  the  moral  effect  of  an  aerial  fleet 
merely  appearing  over  "an  enemy's  capital  within  some  hours  of 
war  being  declared  would  in  itself  be  so  disastrous  and  so  heart- 
breaking when  known  at  the  front  that  victory  should  be  easy  for 
"the  other  side."  "But  the  raiders  would  assuredly  attempt  de- 
struction of  government  buildings,  magazines,  ordinance  works, 
military  stores,  railways,  telegraph  stations,  food  supplies  and 
even  the  national  treasury  and  the  banks  would  be  endangered." 
I  would  add  the  gas  and  electric  works  to  the  formidable  list  of 
suggestions.  The  capital  and  every  great  provincial  town  could 
be  reduced  to  helplessness  and  panic  by  this  policy,  no  longer  a 
source  of  strength  and  assistance  but  a  disordered  and  panic- 
stricken  mass  of  sufferers  for  food,  water,  light  and  all  necessities, 
about  in  the  situation  of  San  Francisco  after  the  fire  and  earth- 
quake with  the  horrors  of  riot,  robbery  and  murder  surely  added. 

A  flight  over  the  sea  has  no  deterring  effect  since  Bleriot  on 
the  morning  of  July  25,  1909,  crossed  from  Calais  to  Dover  on 
his  monoplane,  coming  to  England  (as  has  been  said)31 "  as  no  man 
before  him  had  been  able  to  travel, "  "  crossing  in  better  time  than 
the  fastest  ship, "  making  the  journey  in  less  than  forty  minutes. 

Our  own  eastern  shore  is  protected  by  3,000  miles  of  ocean 
and  our  western  by  a  yet  greater  expanse,  but  since'Ely's  success- 
ful flight  from  the  deck  of  a  cruiser  to  the  shore  on  November  10, 
1910,  it  is  plain  that  air  ships  can  be  launched  from  ocean  steamers 
and  that  we  too  are  open  to  aerial  attack  on  these  sides  as  well 
as  of  course  on  our  north  and  south  borders. 

True,  the  Hague  Conference  in  1907,  prohibited  until  the  "close 
of  the  Third  Peace  Conference  the  discharge  of  projectiles  and 

31Hearne,  p.  260. 


GREGORY  179 

explosives  from  balloons  or  by  other  new  methods  of  a  similar 
nature, "  and  this  provision  was  ratified  by  the  United  States, 
March  12,  1908,  but  it  has  never  been  ratified  as  we  have  seen  by 
France,  Germany,  Russia,  Japan,  Spain,  Italy,  Mexico  and  other 
nations.32 

M.  Ruyssen,  President  of  the  Association  of  Peace  by  Law, 
has  pointed  out  that  hi  the  past,  on  the  invention  of  torpedoes 
or  other  means  of  destruction,  we  were  told  that  they  would 
replace  the  more  expensive  engines  of  war,  but  that  we  always 
found  the  old  must  be  retained,  kept  up  and  the  new  added.*3 

Now  that  the  air  is  added  to  man's  domain  and  habitation,  it 
abates  no  whit  of  terrestrial  or  marine  preparation  for  war  and 
defense;  it  only  adds  this  vast  new  space  as  the  scene  of  increased 
effort,  contest  and  complication  and  exhausting  expenditure. 

Shall  nations  settle  then*  differences  by  contests  with  all  this 
new  and  wide-spread  misery  added  to  the  incidents  of  the  old 
wars?  Shah*  they  newly  burden  their  peace  by  filling  the  air 
on  each  side  with  the  engines  of  destruction  as  they  have  already 
filled  the  seas  and  the  earth,  or  shall  we  insist  on  international 
regulations  for  aviation  hi  peace  to  be  diplomatically  agreed  to, 
founded  on  the  calmest  investigation,  the  ripest  reason  and  the 
fullest  justice?  Shall  we  insist  with  redoubled  zeal  on  attempting 
to  judicially  settle  international  disputes  with  the  assurance  of 
sympathy  and  assistance  vastly  increased  from  the  body  of  the 
peoples? 

I  submit  we  may  hope  for  the  latter  because  we  know  that,  even 
yet,  self-interest  is  stronger  than  altruism.  Aviation  does  away 
with  frontiers.  All  of  England,  all  of  France,  all  of  Germany,  if 
these  countries  are  involved  in  war,  is  the  battle  field,  and,  though 
not  yet  to  the  same  extent,  much  the  same  is  true  of  countries 
of  greater  space  like  Russia  and  the  United  States. 

"See  Pour  I' Aviation,  pp.  193-4;  article  by  Theo.   Ruyssen,  Am.  Journ.  Intern.    Lav, 
January,  1910,  p. 119. 
nPour  I' Aviation,  p.  193. 


l8o  JUDICIAL   SETTLEMENT 

War  is  not  with  the  new  devices  to  be  confined  to  the  frontiers 
and  the  sea  board.  Like  the  sleeping  sickness,  which  has  stricken 
a  continent,  transported  by  winged  insects,  no  fortified  and  de- 
fended border  can  stop  it.  It  can  go  wherever  the  air  goes.  True, 
the  bombardment  of  undefended  towns,  villages,  dwellings,  or 
buildings  is  forbidden,81  but  most  great  cities  are  fortified  and  gar- 
risoned, and,  as  Turner  says  (p.  225),  "  Imagine  two  or  three  huge 
air  ships  sailing  slowly  over  England  and  visiting  one  great  center 
of  industry  after  another  and  demanding  surrender.  Any  resist- 
ance would  justify  bombardment  and  in  this  case  the  authorities 
would  be  wise  to  capitulate." 

The  most  modern  defenses  about  a  frontier,  a  city  or  a  port, 
are  as  obsolete  and  unavailing  against  aerial  attack  as  the  old 
wall  of  China,  built  to  stop  Tartar  horsemen,  is  against  modern 
artillery. 

Jacque  Lorrisson,  in  La  Revue  de  I' Aviation™  gives  estimates  for 
the  construction  of  20  balloons  carrying  30  tons  of  explosives  in  a 
single  journey,  and  finds  that  thus  the  great  naval  ports  of  England 
could  be  destroyed  by  an  expenditure  of  about  £1,200,000. 

We  must  not  be  too  ready  to  receive  these  gallic  visions,  but 
somehow  the  wildest  dreams  of  aviation  are  less  than  the  accom- 
plished fact  a  month  later. 

This  hasty  partial  and  imperfect  survey  seems  to  support  the 
conclusion  that  instead  of  a  small  fraction  of  the  people  being 
exposed  to  the  personal  dangers  and  the  property  losses  of  war, 
often  not  exceeding  5  per  cent  of  the  population,  all  the  great 
civic  centers,  so  clamorous  with  voice  and  press  and  so  potent  in 
deciding  for  war,  will  now,  with  their  household  gods  stand  on  the 
firing  line.  As  Turner  puts  it  (p.  225),  the  conquest  of  the  air  has 
extended  a  country's  vulnerable  area  to  every  acre  of  its  territory. 

If  this  is  understood  it  must  have  a  wonderfully  sobering  effect, 
and  if  it  is  true,  as  maintained  by  most  writers  of  expert  knowledge 

"Hague  Confer.,  1899,  Article  25;  Scott's  Texts,  p.  260. 
*5Quoted  by  Turner,  p.  228. 


GREGORY  l8l 

who  have  given  the  matter  investigation,  this  Association  cannot 
aid  its  own  cause  (which  is  the  common  cause)  better  than  by 
making  the  facts  known  of  all  men. 

The  steamboat  was  not,  as  Napoleon  thought,  "un  joujou" 
a  toy,  a  plaything.  The  railway  has,  though  M.  Thiers  thought 
it  so  impossible,  replaced  the  stage  coach,  and  the  aerial  revolu- 
tion hi  the  matter  of  transport  and  the  art  of  war  is  but  one  added 
cause  why  "the  power  of  sweet  reason"  now  adequate  to  prevent 
and  compose  private  war  should  be  made  equally  potent  for  the 
judicial  settlement  of  international  disputes,  and  for  the  main- 
tenance of  what  Jeremy  Bentham  well  called  "that  peace  which 
is  the  child  of  justice." 

(Thereupon,  at  i  o'clock  p.  m.,  the  Convention  adjourned  until 
Friday  evening,  December  16,  1910,  at  8  o'clock.) 


THIRD  SESSION 
FRIDAY  EVENING,  DECEMBER  16, 1910 

Oscar  S.  Straus,  Presiding  Officer 

JAMES  BROWN  SCOTT,  PRESIDENT  or  THE  SOCIETY:  Ladies  and 
Gentlemen,  before  opening  the  proceedings  of  the  evening,  I  de- 
sire to  make  a  brief  statement  concerning  the  beautiful  building  in 
which  we  meet,  and  to  express  our  appreciation  of  the  courtesy  of 
the  Director  General  and  the  Governing  Board  of  the  Pan  Ameri- 
can Union  in  placing  the  building  at  our  disposal.  It  is  quite 
appropriate  that  we  should  meet  here,  because  this  is  the  visible, 
outward  manifestation  of  a  unity  which  exists  between  all  the 
Americas. 

The  Director  General  has  suggested  that  I  read  a  paragraph 
from  the  program  of  the  International  Union  of  American  Repub- 
lics, prepared  at  the  time  of  the  dedication  of  the  building  in 
order  that  you  might  form  an  adequate  conception  of  the  nature 
of  the  Union,  and  of  the  structure  itself.  It  is  as  follows : 

"The  Pan-American  Bureau  is  the  office  of  the  International 
Union  of  the  American  Republics  which  is  a  friendly  organiza- 
tion comprising  all  of  the  twenty-one  independent  nations  of  the 
western  hemisphere.  This  Union  holds  international  Confer- 
ences every  few  years  at  which  are  carefully  discussed  ways  and 
means  of  promoting  the  welfare,  commerce,  peace  and  friendship 
of  the  countries  participating.  The  Bureau  is  the  active  agency 
for  carrying  out  the  resolutions  and  conventions  of  such  Confer- 
ences, and  is  largely  occupied  in  spreading  practical  and  useful  in- 
formation throughout  the  world  concerning  the  American  repub- 
lics. Its  chief  executive  officer  is  the  Director  who  is  chosen  by 

182 


STRAUS  183 

and  is  responsible  to  the  Governing  Board  composed  of  the  diplo- 
matic representatives  in  Washington  of  the  American  republics  and 
the  Secretary  of  State  of  the  United  States  as  chairman  ex-officio. 
The  Bureau  was  organized  at  the  First  Pan-American  Conference 
held  in  Washington  during  the  winter  of  1889-1890,  and  presided 
over  by  James  G.  Elaine." 

"Its  scope  was  enlarged  at  the  Second  Conference,  held  in  Mex- 
ico City  in  1901-02;  and  at  the  Third  Conference,  held  at  Rio  de 
Janeiro  in  1906,  attended  by  Elihu  Root,  resolutions  were  passed 
providing  for  its  reorganization  and  the  broadening  of  its  respon- 
sibilities and  work  into  an  international  institution  of  recognized 
usefulness  to  all  America.  The  new  structure  provided  through 
the  generous  gift  of  Andrew  Carnegie  and  the  contributions  of 
the  American  Republics,  of  which  the  corner  stone  was  laid  May 
n,  1908,  and  its  grounds,  represent  an  investment  of  one  milh'on 
dollars." 

This  graceful  and  peculiarly  American  building  was  completed 
hi  the  spring  of  the  present  year  and  is  the  official  residence  of  the 
representatives  of  the  Pan-American  Union.  If  all  the  nations 
of  the  world  were  brought  into  such  intimate  personal  contact  as 
are  the  various  nations  forming  Pan- America,  it  is  not  too  much 
to  hope  that  the  good  feeling,  the  friendship,  the  good  understand- 
ing existing  between  them  and  the  inhabitants  of  the  countries 
of  America  would  be  equally  great. 

Ladies  and  Gentlemen,  I  have  the  honor  to  present  to  you,  as 
your  presiding  officer,  the  Honorable  Oscar  S.  Straus,  Ambassa- 
dor to  Turkey,  formerly  Secretary  of  Commerce  and  Labor. 

ADDRESS  OF  OSCAR  S.  STRAUS 

I  deem  it  a  very  great  honor  and  privilege  to  preside  on 
this  occasion.  I  think  we  all  ought  to  deem  it  an  honor  and 
privilege  to  make  whatever  contribution  we  can  toward  fur- 
thering the  noble  objects  which  this  Society  has  in  view.  I 


184  JUDICIAL  SETTLEMENT 

cannot  describe  the  objects  of  the  Conference  for  the  establishment 
of  an  international  court  of  justice  in  more  concise  words  than  by 
saying  it  is  a  movement  to  substitute  right  for  might  in  interna- 
tional relations,  to  substitute  moral  considerations  for  expediency, 
to  substitute  for  the  arbitrament  of  national  standing  armies  the 
arbitrament  of  an  international  court  of  judges,  sitting  robed  in 
the  majesty  of  judicial  right  and  law. 

It  is  a  remarkable  fact,  paradoxical  as  it  may  seem,  that  in 
our  time  and  day  there  are  more  right-thinking  people  among  all 
the  nations  of  the  world  who  are  abhorring  the  thought  of  war; 
and  yet  there  never  was  a  time  in  the  whole  history  of  the  world 
when  more  men  were  being  trained  for  war,  and  when  the  prepa- 
rations for  war  were  carried  forward  with  their  crushing  burdens 
upon  a  more  stupendous  scale.  Armed  peace,  based  upon  the 
ancient  and  still  practised  theory  that  one  sword  keeps  the  other 
hi  its  scabbard,  once  a  normal  necessity,  has  developed  into  an 
abnormal  exaggeration  which  disgraces  our  civilization,  entails 
unnecessary  economic  burdens  upon  the  poor,  and  brings  dis- 
content to  the  peoples  of  all  the  nations  by  stimulating  social 
unrest. 

I  have  just  come  from  a  country  which,  through  a  bloodless 
revolution,  has  overthrown  one  of  the  bloodiest  tyrannies  of  all 
times,  and  established  a  constitutional  form  of  government  under 
a  parliamentary  system — a  system  which  would  hold  out  every 
hope  of  permanent  development  and  improvement,  but  for  the 
one  fact  that  in  order  to  protect  itself  against  surrounding  Chris- 
tian nations,  all  the  money  the  new  regime  can  raise  by  levying 
taxation,  and  which  it  can  secure  by  loans  upon  its  future  re- 
sources, it  must  use  to  maintain  in  times  of  peace  a  standing  army 
of  more  than  four  hundred  thousand  men,  at  an  expense  of  more 
than  $25,000,000,  and  this  when  people  are  hungering  for  better 
roads,  for  industrial  development,  for  economic  uplift.  The  re- 
sources are  there,  the  men  capable  of  doing  the  needed  work  are 
there,  and  the  money  is  there,  but  all  these  are  swallowed  up  in 


STRAUS  185 

maintaining  the  army.  Turkey  would  welcome  an  international 
tribunal  as  a  substitute  for  her  standing  army,  if  her  Christian 
neighbors  would  give  her  the  example  and  the  opportunity.  The 
establishment  of  a  permanent  court  of  arbitration  at  The  Hague 
was  a  great  step  forward.  It  will  ever  be  regarded  as  the  crown- 
ing glory  of  the  nineteenth  century.  It  was  looked  upon  by  many, 
especially  by  professional  diplomatists,  as  a  pious  wish  which 
would  die  still-born,  and  fall  in  desuetude;  but  they  did  not  know 
how  mighty  had  been  the  development  of  public  opinion  in  favor 
of  peace,  and  that  two  republics  of  the  American  continent  would 
open  the  doors  of  this  tribunal  and  put  its  machinery  in  motion. 
In  my  opinion  President  Roosevelt  merited  the  Nobel  peace 
prize  even  more  for  the  services  he  rendered  in  that  regard  than 
for  his  services  in  bringing  about  peace  between  Russia  and  Japan. 

But  we  are  in  the  twentieth  century,  and  in  addition  to  a  tri- 
bunal of  arbitration  which  the  nation  may  resort  to,  we  need  a 
juridical  tribunal  which  the  nations  must  resort  to,  which  the 
nations  will  obligate  themselves  to  resort  to,  a  tribunal  of  law 
and  of  laws  as  distinguished  from  a  tribunal  of  voluntary  adjust- 
ment. It  is  not  in  contemplation  that  the  one  should  supplant 
the  other,  but  that  the  one  should  supplement  the  other.  The 
disputes  between  nations  will  regulate  which  tribunal  will  best 
suit  their  purposes.  The  world  needs  a  tribunal  with  judges  free 
from  national  affiliations  and  attachments,  with  international 
consciences,  with  sworn  duties;  a  court  which  shall  be  permanent, 
and  whose  decisions  will  be  the  international  law  of  the  world, 
pronounced  by  the  world's  international  court. 

We  need  not  trouble  ourselves  about  the  limitation  of  armament 
and  armies.  Such  a  court,  once  established,  under  the  agreement 
of  even  two  or  three  of  the  greatest  powers,  the  beginning  once 
made,  and  as  day  follows  the  night  the  armies  will  grow  less,  as 
the  courts  grow  greater.  The  nations  will  welcome  this  most  secure 
guaranty  for  peace,  when  the  combined  power  of  all  the  nations 
will  be  the  protecting  shield  of  each  one. 


1 86  JUDICIAL  SETTLEMENT 

The  first  gentleman  who  will  address  you  represents  the  country 
that  by  its  history  in  the  last  hundred  years  and  by  its  services 
in  international  affairs  is  dedicated  to  peace.  The  first  great 
Hague  Conference,  and  the  second  great  Conference,  met  in  that 
country  of  peace,  and  the  great  and  benevolent  donor  of  the  im- 
mense contribution  for  the  purpose  of  advancing  international 
peace  has  dedicated  the  money  for  the  erection  there  of  a  Palace 
of  Peace;  and  I  think  I  need  not  indulge  any  prophesy  in  saying 
that  the  very  location  of  the  Palace  of  Peace  at  The  Hague  is  an 
everlasting  security  and  protection  for  that  noble  country.  No 
nation  would  ever  dare  to  place  its  hand  upon  or  interfere  with 
the  welfare  of  the  country  that  shields  the  Temple  of  Peace, 
because  the  sentiment  of  all  nations  would  forever  protect  it 
against  the  hostile  foe. 

I  have  the  great  pleasure  and  honor  of  introducing  to  you 
His  Excellency,  M.  Jonkheer  J.  Loudon,  Envoy  Extraordinary 
and  Minister  Plenipotentiary  of  the  Netherlands  to  the  United 
States. 

HOLLAND   AS  AN  INTERNATIONAL   HOST 

JONKHEER  J.   LOUDON 

Mr.  Chairman,  Ladies  and  Gentlemen,  I  consider  it  a  privi- 
lege to  have  been  requested  by  the  Committee  of  the  Society  for 
Judicial  Settlement  of  International  Disputes  to  make  a  few 
remarks  on  this  occasion. 

According  to  the  traditions  of  my  profession,  I  should  listen, 
not  speak.  Yet  on  an  occasion  like  the  present  one,  where  the 
object  of  our  gathering  is  in  complete  harmony  with  the  noblest 
aim  of  modern  diplomacy,  namely  the  prevention  and  appease- 
ment of  conflicts  between  states,  even  a  diplomat  may  unseal 
his  lips  without  risk. 

I  wish  to  address  you,  not  for  the  purpose  of  shedding  any  new 


LOUDON  187 

light  on  the  important  questions  that  are  engaging  your  attention 
nor  to  contribute  to  the  learned  and  brilliant  addresses  that 
have  been  delivered  before  you,  but  merely  to  convey  to  your 
Society  the  assurance  of  the  cordial  sympathy  its  efforts  call  forth 
in  Holland,  and  especially  at  The  Hague,  the  country  and  city 
which  at  the  present  day  may  term  themselves  "international 
hosts."  For  international  hosts  they  verily  are,  since  the  nations 
of  the  world  have  chosen  the  old  historic  abode  of  the  Counts  of 
Holland  and  the  Princes  of  Orange-Nassau  as  the  meeting- 
ground  not  only  for  the  World's  Peace  Conferences,  but  also  for 
a  constantly  increasing  number  of  international  gatherings  to 
promote  uniform  legislation  on  various  subjects,  such  as  inter- 
national private  law  (under  Professor  Asser's  lead),  bills  of  ex- 
exchange,  the  opium  traffic  and  others. 

If  Emeric  Cruce  had  been  successful,  the  World's  Peace  Con- 
ferences would  not  be  held  at  The  Hague  but  at  Venice.  In  that 
remarkable  little  book,  Le  nouveau  Cynee,  published  at  Paris  in 
1623,  and  of  which  Mr.  Th.  W.  Balsh  has  lately  issued  a  new 
edition  in  a  most  interesting  form,  E.  Cruce  first  started  the  idea 
of  a  Court  of  Ambassadors,  to  be  appointed  at  the  initiative  of 
one  or  more  leading  sovereigns  for  the  settlement  of  international 
disputes.  I  say  Cruc6  was  the  first,  for  the  "Grand  Dessein" 
of  Henry  IV  and  Sully  was  obviously  not  prompted  by  disinter- 
ested motives  in  the  cause  of  Peace,  but  rather  by  the  desire  to 
cripple  a  mighty  rival,  the  House  of  Hapsburg. 

The  territory  of  Venice  seemed  to  Cruc6  the  most  commodious 
place  for  an  assembly  such  as  he  advocated,  because,  said  he,  it 
was  "practically  neutral,  indifferent  to  Princes  and  near  the  most 
important  monarchies  of  the  world." 

The  idea  of  a  Congress  of  Nations  for  the  peaceful  adjustment 
of  disputes  was  an  idle  dream  in  the  days  of  Cruce",  and  no  govern- 
ment seriously  considered  it.  In  his  De  jure  belli  ac  pacts,  Gro- 
tius  mentioned  the  advisability  of  submitting  to  a  Congress  of 
Christian  powers  controversies  which  might  arise  among  some 


1 88  JUDICIAL   SETTLEMENT 

of  them,  but  the  idea  of  an  actual  Union  of  Nations  did  not  occur 
to  him.  Several  suggestions  of  similar  character  had  later  been 
made  by  men  of  deep  thought,  such  as  the  Abbe  de  St.  Pierre, 
William  Penn,  Bentham  and  Kant,  Ladd,  Lormier  and  Blunt- 
schli.  Yet  for  nearly  three  centuries  not  one  of  the  governments 
of  the  world  contemplated  the  practicability  of  such  a  scheme. 
It  was  only  in  1898  that  the  Czar  of  Russia,  wishing  to  realize 
a  dream  cherished  at  one  time  by  the  Emperor  Alexander  I,  nobly 
took  the  initiative  in  calling  a  conference  of  nations,  seeking 
thereby  to  approach  the  ideal  of  peace  by  placing  a  limit  to  the 
incessant  increase  of  armaments.  When,  on  August  i2th  of  that 
year,  the  Russian  government  suggested  to  the  representatives 
of  the  powers  at  St.  Petersburg  the  holding  of  a  peace  conference, 
at  a  moment  even  when  war  clouds  were  gathering  on  the  distant 
horizon,  very  few  believed  in  any  practical  result  from  such  a 
conference.  Selfish  motives  were  attributed  to  the  proposer  and 
the  public  at  large  shrugged  its  shoulders  and  smiled  at  the  mere 
title  of  "Peace  Conference."  To  those  who  expected  the  meeting 
to  establish  world-peace  and  disarmament,  the  project  might 
indeed  seem  Utopian.  Yet  at  the  present  date,  after  realizing 
what  two  such  conferences  have  accomplished,  the  most  incred- 
ulous will  admit  that  no  better  name  could  have  been  given  to 
those  world  gatherings  which  make  for  harmony,  order  and  jus- 
tice among  the  nations  and  which  consequently  promote  above  all 
the  cause  of  peace, — that  ideal  as  Count  MuraviefPs  note  justly 
remarked,  towards  which  the  endeavors  of  all  governments 
should  be  directed. 

In  1898  Venice  was  no  longer  the  practically  neutral  common- 
wealth which  appealed  to  Cruce  in  1623  as  the  most  suitable  seat 
for  an  international  court.  It  might  have  been  expected  that 
the  august  promoter  of  the  conference,  Czar  Nicolas  II,  would 
suggest  for  that  purpose  the  capital  of  a  neutralized  country  such 
as  Belgium,  Switzerland  or  Luxemburg.  But  the  Emperor's 
choice  fell  upon  Holland,  the  old  historic  center  of  learning,  of 


LOUDON  189 

high  ideals,  and  of  liberty  in  thought  and  action,^a  small  coun- 
try, jealous  of  its  independence,  uninfluenced  by  any  of  its  mighty 
neighbors,  not  neutralized,  but  limiting  its  military  aims  to  the 
protection  of  its  neutrality  and  that  of  its  vast  dominions  beyond 
the  seas,  in  case  of  conflict  between  other  powers.  At  the  open- 
ing of  the  first  Conference,  the  President,  M.  de  Staal,  said: 

"It  is  upon  the  historic  ground  of  the  Netherlands  that  the 
greatest  problems  of  the  political  life  of  states  have  been  discussed ; 
it  is  here,  as  one  may  say,  that  the  cradle  of  the  science  of  inter- 
national law  stood." 

The  selection  of  Holland  as  the  seat  of  the  Peace  Conference  and 
of  so  many  other  meetings  concerning  international  legislation  is 
virtually  a  world's  tribute  to  the  memory  of  that  great  genius 
Grotius,  our  Hugo  de  Groot,  to  whom  all  the  nations  of  the  globe 
owe  a  debt  of  eternal  gratitude  for  the  foundation  of  that  ever- 
extending  structure  to  which  the  name  of  international  law  has 
been  given,  a  law  distinct  from  all  others  and  perhaps  superior 
to  all  others,  because  it  receives  its  sanction  from  voluntary,  not 
compulsory,  submission  to  its  dictates. 

Grotius  was  born  and  bred  in  Holland.  The  University  of 
Leiden,  William  the  Silent's  creation,  was  also  his  Alma  Mater, 
and  thus  he  lived  in  the  city  where,  for  eleven  years,  your  Pilgrim 
Fathers  found  a  refuge  from  persecution  and  were  imbued  with 
so  many  of  those  ideas  of  liberty  that  were  to  be  embodied  later 
in  your  glorious  institutions.  In  those  same  years,  during  our 
truce  with  Spain,  Grotius  took  part  in  political  dissensions  in 
the  fierce  intestine  struggle  (which  we  also  have  known)  for  state 
versus  federal  rights.  That  struggle,  personified  in  Prince  Mau- 
rice of  Orange,  the  great  warrior  and  naturally  a  believer  in  cen- 
tralization, and  John  van  Oldenbarnevelt,  the  defender  of  state- 
rights,  led  to  the  imprisonment  of  Grotius,  Oldenbarnevelt's 
friend,  in  the  castle  of  Louvesteyn.  His  learning  practically  was 
his  salvation,  for  had  he  not  on  account  of  his  reputed  knowledge 
been  allowed  the  use  of  books,  even  the  ingenuity  and  devotion  of 


IQO  JUDICIAL   SETTLEMENT 

his  wife  could  not  have  given  him  the  chance  of  escaping  in  a 
trunk  supposed  to  contain  books.  He  lived  and  died  far  from 
his  native  land.  His  exile  leaves  a  stain  on  our  history,  alas,  but 
we  are  justly  proud  of  the  genius  whose  learning,  world-wide 
and  world-famed,  originated  and,  in  his  most  receptive  years, 
developed  on  Dutch  soil.  It  is  a  great  pleasure  for  me  to  recall 
Dr.  Andrew  D.  White's  admirable  recognition  of  Grotius'  claim 
to  the  gratitude  of  the  first  Peace  Conference,  when  in  the  name 
of  the  United  States,  he  laid  a  golden  wreath  upon  his  tomb  at 
Delft,  July  4,  1899- 

Among  the  world-laborers  for  the  cause  of  Peace,  we  Holland- 
ers then  are  truly  thankful  that  The  Hague  has  been  chosen  as 
the  seat  of  Peace  Conferences  and  as  a  center  for  the  study  of 
international  law.  We  are  thankful,  also,  because  of  the  excep- 
tional standing  it  gives  to  our  country  among  the  nations  of  the 
world.  In  the  sixteenth  and  seventeenth  centuries,  our  great 
University  of  Leyden  and  our  city  of  The  Hague — politically 
speaking,  the  capital  of  the  United  Netherlands — afforded  a  shel- 
ter to  scientists,  lawyers,  men  of  letters,  and  apostles  of  free 
thought  from  all  countries  where  genius  was  hampered  by  polit- 
ical or  religious  intolerance.  In  the  twentieth  century  we  find 
ourselves  welcoming  on  our  peaceful  soil,  free  as  ever,  independent 
as  ever,  the  ablest  statesmen,  jurists  and  diplomats  of  the  world, 
the  actual  representatives  in  flesh  and  blood  of  that  lofty  aim  of 
all  righteous  nations  and  governments — "Peace  on  earth  and  good 
will  toward  men." 

Those  among  you  who  have  visited  The  Hague  will  be  able  to 
judge  in  what  measure  the  city's  appearance  is  in  keeping  with 
the  character  of  Peace  Conferences.  Free  from  the  bustle  of  large 
commercial  centers,  with  surroundings  vast  and  quiet,  yet  never 
lifeless,  with  woods  and  dunes,  meadows  and  the  ever-changing 
seashore  near,  The  Hague  seems  still  imbued  with  the  spirit  of  our 
golden  age,  the  days  of  Rembrandt,  Frans  Hals,  Hobbema,  Ver- 
meer  and  Van  de  Velde.  Hidden  among  tall  beech  trees  at  some 


LOTTDON  IQI 

distance  from  the  town  stands  the  "House  in  the  Woods,"  with 
its  sumptuous  "Oranje  Zaal."  It  is  this  historic  hall  which  Her 
Majesty  the  Queen  chose  as  the  most  suitable  meeting  place  for 
the  first  Conference,  because  of  its  peaceful  site  and  the  ap- 
propriateness of  its  pictorial  decoration  representing  an  allegory 
of  the  Peace  of  Westphalia,  that  first  successful  adjustment  of 
great  international  conflicts  by  a  congress  of  the  powers.  The 
Second  Conference  was  held  in  the  Gothic  "Hall  of  Knights"  at 
the  "Binnenhof,"  bordering  the  large  square  pond  which  is  the 
characteristic  feature  of  old  's  Gravenhage,  the  one-time  hunting 
park  of  the  Counts  of  Holland.  The  Third  Conference  will  most 
probably  not  take  place  in  the  same  hall,  but  in  the  new  Peace 
Palace,  the  magnificent  donation  of  your  generous  compatriot, 
Mr.  Andrew  Carnegie. 

In  mentioning  Mr.  Carnegie's  name,  I  wish,  as  the  representa- 
tive of  Her  Majesty  the  Queen  and  of  the  Netherland  government, 
to  add  my  most  cordial  tribute  of  gratitude  and  admiration  to 
the  manifold  tokens  of  appreciation  which  are  being  received  by 
that  great  servant  of  mankind  for  the  new  proof  of  true  public 
spirit  which  he  has  just  given  by  the  creation  of  a  ten-million- 
dollar  fund  for  the  cause  of  peace. 

Mr.  Carnegie's  Peace  Palace  at  The  Hague  is  now  rising  on  our 
soil.  The  Hague  is,  and  always  will  be,  the  international  host 
whenever  the  delegates,  arbitrators  or  judges  from  different 
countries  meet  in  that  palace.  Above  all,  we  wish  those  peace 
messengers  to  feel  at  home  in  our  city.  We  hope  they  will  not 
merely  consider  themselves  our  guests,  but  feel  as  if  they  were 
residing  on  their  own  special  territory,  free  in  all  their  movements 
and  unhampered  by  the  exacting  duties  of  too  may  social  func- 
tions, official  calls  and  official  entertainments.  Such,  I  believe,  is 
the  truest  hospitality  to  extend  to  our  brothers  in  the  great  cause 
of  peace. 

At  The  Hague,  the  American  peace  promoters  have  a  particular 
claim  to  a  hearty  welcome,  since  the  part  this  country  has  played 


JUDICIAL  SETTLEMENT 

in  furthering  the  cause  of  the  peaceful  settlement  of  international 
disputes  is  indeed  great.  At  the  first  Hague  Conference,  the 
American  delegates,  Messrs.  Andrew  D.  White,  Seth  Low  and 
Holls,  were  foremost  among  the  advocates  of  a  Court  of  Arbi- 
tration and  most  instrumental  in  convincing  those  who  were 
opposed  to  it.  The  Second  Conference  was  due  to  the  initiative 
of  President  Roosevelt,  taken  at  the  request  of  the  Interparlia- 
mentary Union  in  session  at  St.  Louis.  In  Mr.  Hay's  circular 
note  of  October,  1904,  the  hope  was  expressed  that  the  Second 
Peace  Conference  would  take  place  at  The  Hague  as  "  the  cradle 
of  the  beneficent  work  which  had  its  beginning  hi  1899."  In  its 
final  act,  the  Conference  stated  that  it  had  been  proposed  in  the 
first  instance  by  the  President  of  the  United  States. 

As  international  hosts,  we  may  look  with  satisfaction  upon 
what  our  guests  have  helped  us  to  accomplish.  Not  that  war 
is  now  abolished,  nor  that  armaments  are  limited.  The  nations 
of  the  earth  are  still  in  the  stage  where  the  old  Roman  saying 
remains  true :  "  If  you  wish  for  peace,  prepare  for  war."  Never- 
theless, the  Hague  Conferences  and  subsequent  conventions  have 
done  far  more  than  the  public  at  large  realized  to  mitigate  the 
effects  of  wars  and  even  to  prevent  their  outbreak  in  the  future. 
I  need  hardly  recall  the  conventions  that  were  the  outcome  of 
the  Conferences.  The  detractors  of  those  Conferences  forget  what 
it  means  for  the  representatives  of  the  powers  of  the  world  to 
have  succeeded  in  laying  down  rules  not  only  regarding  inter- 
national arbitration  and  the  procedure  before  arbitral  tribunals, 
but  also  concerning  the  delicate  question  of  "good  offices"  and 
"mediation."  They  forget  that  the  Dogger  Bank  affair  of  1904 
might  easily  have  led  to  hostilities  if  it  had  not  been  submitted 
to  the  Commission  of  Inquiry  provided  by  the  first  Hague  Con- 
ference. They  forget  the  whole  series  of  humanitarian  measures 
embodied  hi  those  Hague  conventions.  Who  can  deny  the  sig- 
nificance of  the  consensus  of  opinion  the  Second  Conference 
brought  about — not  without  difficulty — in  regard  to  the  rights 


LOUDON  193 

and  duties  of  neutral  powers  and  individuals  in  case  of  war,  to 
the  limitation  on  the  employment  of  force  for  the  recovery  of 
contract  debts,  to  the  institution  of  an  International  Prize  Court, 
which  again  led  to  the  Declaration  of  London  last  year,  and  to  the 
great  American  proposal  to  establish  a  regular  Court  of  Arbitral 
Justice,  not  supplanting  the  existing  so-called  "Permanent  Court 
of  Arbitration,"  but  offering  in  addition  thereto  almost  all  the 
advantages  of  a  Supreme  Court  with  its  full  judicial  equipment? 

The  greatest  result  attained  by  the  Hague  Conferences  is  per- 
haps the  atmosphere  they  have  created,  the  sense  of  confidence 
they  have  engendered  and  the  seeds  they  have  sown  by  the  mere 
interchange  of  thoughts  between  the  right-minded  and  the  ablest 
men  of  the  world.  Since  1899,  when  the  first  Conference  met, 
peace  and  arbitration  societies  have  sprung  up  in  almost  every 
country.  The  public  is  growing  daily  more  familiarized  with 
the  idea  of  peaceful  settlement  of  international  quarrels.  Yet, 
much  remains  to  be  done. 

Governments  are  not  resting  idle.  Arbitration  treaties  are 
constantly  being  signed.  There  is  also  a  growing  tendency 
between  the  powers  to  make  agreements,  declarations,  ententes, 
conventions,  in  order  to  maintain  peace  undisturbed,  and  to 
reach  an  understanding  in  the  event  of  a  threatened  disturbance. 

But  what  is  needed  above  all  is  the  public  sentiment  back  of 
the  governments.  Nations  must  be  taught  to  consider  their 
disputes  in  a  different  spirit  than  hitherto;  they  must  learn  to 
understand  "the  moral  issue,"  as  Mr.  Carnegie  said  yesterday; 
that  education  must  come,  not  from  above,  but  from  the  people 
themselves,  led  by  such  societies  as  yours.  I  firmly  believe  that 
an  immeasurable  step  in  the  desired  direction  would  be  taken  if 
all  the  peace  associations  of  the  world,  the  Interparliamentary 
Union,  and — last,  not  least — the  trustees  of  Mr.  Carnegie's  new 
institution  were  to  join  hands  in  order  to  have  the  public  educated 
in  the  right  spirit  from  the  school  bench  up. 

In  a  few,  probably  five,  years  the  Third  Peace  Conference  will 


194  JUDICIAL   SETTLEMENT 

meet  at  The  Hague.  According  to  a  statement  made  before 
Parliament,  my  government  is  already  considering  the  appoint- 
ment of  a  competent  preparatory  commission.  When  that  con- 
ference meets,  it  will  in  all  probability  find  definitely  established 
not  only  the  International  Prize  Court  called  forth  by  the  Second 
Conference,  but  also  that  greatest  achievement  of  all,  a  Permanent 
Court  of  Arbitral  Justice.  The  establishment  of  that  new  court 
will  be  due  in  the  first  place  to  the  United  States,  to  its  Chief 
Magistrate,  to  the  persevering  action  of  two  Secretaries  of  State, 
the  Honorable  Elihu  Root  and  the  Honorable  Philander  C.  Knox. 
Above  all,  I  think  I  may  say  that  it  will  be  due  to  the  brilliant 
initiative  of  Dr.  James  B.  Scott,  the  distinguished  solicitor  of 
the  State  Department  and  President  of  this  Society. 

THE  PRESIDING  OFFICER  (STRAUS):  The  next  speaker 
needs  no  introduction.  He  has  distinguished  himself,  first  at  the 
bar  of  this  great  country,  then  as  Ambassador  to  Great  Britain, 
and  lastly  as  the  Chairman  of  the  Commission  to  the  Hague  Con- 
ference, who,  with  his  able  associates,  advocated,  with  his  felici- 
tous eloquence  and  ability,  the  establishment  of  a  permanent 
juridical  international  court.  Even  I,  far  away  as  I  was  in 
Constantinople,  constantly  heard  of  the  magnificent  conduct 
and  able  management  of  the  American  delegation  in  pushing 
forward  the  instructions  of  their  government  for  the  establish- 
ment of  a  permanent  international  court,  and  it  is  due  to  the 
delegation,  of  which  Mr.  Choate  was  chairman  and  the  able 
and  eloquent  exponent,  that  we  are  here  to-night;  for  I  doubt 
whether  President  Scott,  who  has  given  so  much  time  and  ability 
to  the  development  of  the  international  peace  idea,  would  have 
had  the  courage  to  suggest  the  formation  of  this  Society,  but  for 
the  fact  that  The  Hague  Conference  adopted  the  principle  of  a 
permanent  international  court,  and  the  Society  has  now  been 
organized  for  the  purpose  of  finishing  that  work.  The  Chair- 
man of  our  Commission  to  The  Hague  will  now  address  you. 


CHOATE  195 

THE    COURT    OF    ARBITRAL    JUSTICE    AS    RECOM- 
MENDED BY  THE  SECOND  HAGUE  CONFERENCE 

JOSEPH  H.  CHOATE 

Mr.  Chairman,  Ladies  and  Gentlemen,  the  work  of  the 
Second  Peace  Conference  at  The  Hague  has  been  steadily 
growing  upon  the  imagination  and  the  judgment  of  the  world 
ever  since  it  adjourned  in  October,  1907,  and  will  continue  to 
do  so  as  long  as  the  increasing  public  sentiment  in  favor  of 
peace  and  of  the  peaceful  solution  of  all  international  difficulties 
follows  out  the  lead  which  that  Conference  gave  in  the  things 
which  it  accomplished,  and  especially  in  the  things  which  it  did 
not  succeed  in  bringing  to  an  end.  And  yet  when  that  con- 
ference met,  it  was  a  subject  of  criticism  and  cavil  all  through  its 
proceedings.  It  had  enemies  in  various  parts  of  the  world,  and 
nowhere  more  conspicuous  than  in  England,  where  you  would 
suppose  its  purposes  would  at  least  have  been  cherished  with 
most  buoyant  hopes  and  encouragement.  The  London  Times, 
however,  a  great  leader  of  public  opinion,  censured  us  from  the 
beginning  to  the  end.  Let  me  read  you  what  they  said  on  the 
7th  of  October,  a  week  before  we  completed  our  labors: 

"They  (members  of  the  Conference)  have  negotiated  a  com- 
promise and  tried  to  dupe  each  other,  and  resorted  to  all  the 
little  tricks  and  devices  of  second-class  diplomacy." 

That  is  the  voice  of  the  Thunderer!  But  I  think  it  was  largely 
stage  thunder,  manufactured  for  the  occasion,  and  accompanied 
by  no  lightning  flashes  whatever. 

And  then,  on  the  i9th  of  October,  three  or  four  days  after  we 
completed  our  labors  and  adjourned,  it  paid  this  still  more  glow- 
ing compliment: 

February  17,  Mr.  Choate  made  another  address  which  appears  under  that  date. 


196  JUDICIAL   SETTLEMENT 

"In  plain  English  the  Conference  was  a  sham  and  has  brought 
forth  a  progeny  of  shams,  because  it  was  founded  on  a  sham. 
We  do  not  believe  that  any  progress  whatever  in  the  cause  of 
peace,  or  in  the  mitigation  of  the  evils  of  war,  can  be  accomplished 
by  a  repetition  of  the  strange  and  humiliating  performance 
which  has  just  ended." 

A  great  compliment  indeed  to  Mr.  Scott  and  myself! 

In  the  last  forty-eight  hours  a  great  many  people  have  been 
wondering  what  the  trustees  of  Mr.  Carnegie's  new  ten-million- 
dollar  trust  will  do  with  the  money.  It  is  quite  obvious,  from 
what  I  have  read  to  you,  that  they  can  spend  a  great  deal  in 
cultivating  the  sentiments  of  the  leaders  of  public  opinion  in 
certain  countries. 

Well,  we  did  a  great  deal.  In  the  first  place,  the  mere  fact  of 
the  gathering  together  of  such  an  assembly  was  a  huge  step  for- 
ward in  the  progress  of  civilization.  It  was  the  first  tune  that 
all  the  civilized  nations  of  the  globe  had  gathered  together  to 
confer  upon  what  might  best  be  done  to  promote  the  welfare  of 
mankind.  I  say  all  the  nations.  I  believe  Abyssinia  was  not 
there,  but  whether  she  could  have  contributed  very  much  to  our 
stock  of  ideas,  I  do  not  know.  All  the  American  nations  were 
there,  because  Mr.  Root,  in  his  far-seeing  sagacity,  made  it 
practically  a  condition  of  our  attending  the  Conference  that  all 
American  nations  should  be  invited  to  join.  Panama  was  there, 
the  latest  offspring.  She  had  scarcely  recovered  from  the  shock 
of  her  premature  birth.  But  she  was  represented  by  an  eminent 
and  most  acceptable  gentleman. 

Our  program,  which  was  furnished  to  us  in  the  instructions  of 
Secretary  Root,  deserves  to  be  embalmed  in  the  literature  of 
the  world  as  one  of  the  most  marked  steps  in  advance  that  civi- 
lization has  ever  taken.  He  entrusted  to  us  more  than  was  en- 
trusted to  the  representatives  of  any  other  nation — the  most  pro- 
gressive, the  most  constructive  propositions  which  we  were  to 
press  to  the  best  of  our  ability,  upon  the  delegates  who  were  gath- 


CHOATE  197 

ered  together.  Very  much  that  we  did  present  was  accomplished, 
and  very  great  progress  was  made  in  what  we  did  not  accomplish. 
As  he  said  himself,  and  as  everybody  knows  in  respect  to  all  such 
conferences,  one  conference  is  merely  a  step  to  another  con- 
ference. Things  proceed  gradually,  step  by  step,  as  they  are 
evolved  from  the  conscience  of  mankind  from  year  to  year  and 
from  age  to  age,  as  the  suggestions  emanate  from  one  govern- 
ment or  another. 

Let  me  enumerate  three  or  four  things  that  were  really  made 
the  subjects  of  marked  progress.  For  a  hundred  years  America 
had  been  contending  for  the  proposition  that  private  property 
at  sea  should  be  exempt  from  capture  upon  the  outbreak  of  war. 
It  had  been  proposed  by  my  predecessor,  Andrew  D.  White, 
in  the  first  Conference,  and  he  could  not  get  a  hearing.  It 
was  reserved  for  consideration  at  the  Second  Conference.  Ever 
since  Franklin's  day  it  had  been  most  urgently  pressed  by  great 
American  statesmen  and  by  many  of  other  nations.  Well,  we 
had  a  full  discussion  this  time.  I  think  it  occupied  twelve  or 
fifteen  sessions  of  the  commission  to  which  it  was  referred,  and 
when  the  vote  came  to  be  taken  a  majority  of  the  nations  of  the 
world  voted  for  that  proposition.  Of  course  the  great  nations, 
except  Germany,  stood  hi  the  way.  Somehow  or  other  the 
objections  all  seemed  to  me  to  center  about  the  British  Channel, 
how  the  British  Channel  could  be  kept  open,  as  England  wanted 
it  to  be  kept  open,  in  case  of  war,  for  her  supplies  to  come  in, 
or  how  it  might  best  be  shut  up,  as  Germany  and  Russia  and  other 
nations  wanted,  in  case  any  such  horrible  catastrophe  should 
take  place;  but  what  was  done  there  was  a  very  great  step  for- 
ward, and  when  a  conference  takes  place,  or  another  or  another 
(it  may  take  a  century  more),  it  will  come,  and  that  horrible 
relic  of  barbarism,  the  destruction  of  innocent  property  as  a 
means  of  striking  the  first  blow  in  a  war,  will  cease  to  be. 

Then  we  succeeded  in  establishing,  by  the  unanimous  vote  of 
the  Conference,  that  in  the  case  of  pecuniary  debts  owed  by  one 


198  JUDICIAL  SETTLEMENT 

nation  to  the  citizens  of  another  nation,  there  should  be  no 
attempt  to  extort  them  by  force  until  an  arbitration  had  been 
had  as  to  the  merits  of  the  claim.  That  was  another  very  great 
step  in  advance.  And  then  we  took  up  the  question  of  a  general 
treaty  of  arbitration,  which  had  been  thought  an  impossible 
thing  seven  years  before  in  the  first  Conference,  and  it  engaged 
the  attention  of  the  body  for  weeks  and  weeks  between  July  and 
October;  and  at  last,  when  we  came  to  a  vote,  the  nations  voted 
four  to  one  in  favor  of  such  a  general  arbitration  agreement. 
We  did  not  succeed  in  carrying  it  through,  because  some  of  the 
reactionary  nations  would  not  consent,  but  they  will  consent 
by  and  by.  They  cannot  stand  up  and  face  the  public  opinion 
of  all  mankind.  And  you  will  find  that  as  further  conferences 
are  called,  they  will  result  in  a  general  arbitration  agreement 
between  all  the  nations. 

Then  we  established  an  actual  international  court  for  the  first 
time  in  human  history,  to  which  all  the  nations  assented.  I  mean 
the  International  Court  of  Appeals  in  prize  cases.  Heretofore 
each  nation  getting  into  war  was  the  judge  of  the  rightfulness  of 
its  own  captures,  and  the  unfortunate  neutrals  whose  goods  were 
seized  had  to  submit  to  the  judgment  of  the  nation  that  was 
judge  in  its  own  case.  Nothing  could  be  more  unjust  than  that, 
and  it  was  a  wonderful  step  in  the  progress  of  civilization  when 
all  the  nations  of  the  earth,  forty-four  in  number,  agreed  to  the 
establishment  of  such  an  international  court. 

Then  we  came  to  the  very  thing  that  is  the  subject  of  this 
Conference — I  call  it  a  Peace  Conference.  It  is  the  third  peace 
conference,  held  here  in  Washington.  It  does  not  sit  quite  so 
long  as  we  sat  at  The  Hague.  We  sat  four  months.  You  will 
conclude  your  deliberations  in  four  days,  but  you  will  advance 
the  public  sentiment  of  mankind  on  that  question  in  a  very  vast 
degree. 

Well,  we  took  up  that  subject.  It  was  one  of  the  things  that 
we  were  expected  and  instructed  to  press  with  all  our  force,  and 


CHOATE  IQ9 

we  did;  and  I  am  happy  to  say  that  Germany  and  Great  Britain 
joined  with  us  hi  perfecting  a  plan,  and  we  did  before  the  four 
months  were  completed  reach  an  agreement  in  which  all  the 
nations  of  the  earth  joined,  in  the  first  place  that  there  ought  to 
be  such  a  court,  a  tribunal  that  should  be  a  court  of  law  for  the 
trial  of  legal  questions,  questions  involving  the  interpretation  of 
treaties,  questions  which  judges  and  lawyers  are  best  able  to  de- 
cide. They  agreed  in  the  first  place  that  there  ought  to  be  such 
a  court;  and  when  all  the  nations  of  the  earth  say  there  ought 
to  be,  it  means  that  there  must  be  and  will  be  such  a  court. 

We  went  further  than  that.  We  spent  weeks  and  weeks.  Mr. 
Scott  sat  up  all  night  many  nights,  elaborating  this  scheme  for 
the  procedure,  for  the  organization,  for  the  principles  that  should 
govern  the  court.  All  that  was  agreed  to,  and  there  was  another 
tremendous  step  in  advance.  Why,  at  the  time  of  the  first  Con- 
ference, or  at  any  time  in  any  previous  year  of  the  world's  exist- 
ence, such  an  idea  would  have  been  scouted,  but  here  all  the 
nations  of  the  earth  agreed  that  there  must  be  such  a  court.  I 
will  not  enter  into  details  about  its  functions,  because  almost 
every  speaker  who  has  addressed  the  Conference  in  the  last  two 
days  has  described  it.  Why  did  we  not  carry  it  through?  It  was 
simply  a  difficulty  in  agreeing  as  to  how  the  judges  should  be 
selected.  I  think  the  number  was  to  be  fifteen,  of  whom  nine 
should  constitute  a  quorum.  We  and  Great  Britain  and  Germany 
and  France  and  Russia  all  agreed  that  it  should  be  constituted 
as  the  prize  court  was;  that  you  should  take  the  eight  great 
nations,  the  greatest  in  resources,  in  population,  in  business,  in 
matters  that  would  come  naturally  before  the  consideration  of 
such  a  court,  and  that  they  should  each  have  a  judge  of  the  court 
all  the  time,  and  that  the  other  nations,  having  less  occasion  for 
the  services  and  offices  of  the  court,  should  be  graded,  according 
to  what  we  have  considered  their  relative  importance,  from  twelve 
years,  the  term  for  which  the  eight  great  nations  were  to  have 
permanent  judges,  down  to  one  year.  Panama  was  to  have 


2OO  JUDICIAL   SETTLEMENT 

and  Denmark  one.  Well,  we  got  along  very  well,  as  we  thought, 
while  we  were  considering  the  matter  among  the  principal  na- 
tions, but  by  and  by  the  idea  started  among  the  smaller  nations 
that  one  nation  is  as  big  as  another,  that  Panama  is  quite  equal 
to  the  United  States  of  America,  that  Denmark  is  the  equal  in 
every  respect  of  Russia,  that  Portugal  is  quite  a  match  for  the 
German  Empire.  Well,  so  it  is  theoretically  and  juridically,  but 
you  never  could  get  along  on  that  theory;  and  we  supposed  that 
as  they  had  accepted  the  idea  of  a  graduated,  graded  distribution 
of  judges  for  the  international  court  of  appeal  in  prize  cases, 
they  would  do  it  for  all  the  rest,  but  they  declined.  There 
was  no  way  of  overcoming  their  objections  in  the  Conference,  and 
so,  like  good,  pious  delegates  as  we  were,  instructed  by  our  Secre- 
tary of  State  to  press  nothing  to  the  point  of  irritation,  but  when 
we  found  we  could  not  agree,  to  lay  a  thing  aside,  that  future  years 
and  further  consideration  and  negotiation  between  the  nations 
might  bring  it  to  a  point  of  agreement,  we  laid  it  aside  and  ad- 
journed. But  there  stands  on  the  records  of  the  Conference,  the 
decision  of  all  mankind  that  there  must  be  such  a  court,  with  the 
constitution  of  the  court  agreed  to  by  everybody,  and  the  only 
thing  that  remains  is  to  plan  a  way  for  the  selection  of  the  judges. 
We  tried  our  best,  we  offered  everything.  We  said,  "Well,  we 
will  treat  you  exactly  as  equals,  we  will  have  an  election,  every- 
body having  an  equal  vote,  Panama,  Denmark  and  Portugal  equal 
with  Great  Britain,  Russia  and  the  United  States,  and  you  shall 
select  fifteen  nations,  each  of  whom  shall  name  a  judge."  Well, 
that  would  not  do.  They  were  afraid  they  would  not  get  any 
judges.  Then  we  proposed  that  we  would  have  an  election  by 
which  all  nations  should  ballot  for  fifteen  members,  and  the 
names  be  put  in  a  hat,  and  the  fifteen  that  had  the  largest 
number  on  a  count  should  be  the  judges;  and  we  even  went  so  far 
as  to  say  that  we  would  not  stipulate  that  we  should  have  one  of 
the  judges,  that  we  would  take  our  chance.  We  thought  that 
there  would  be  some  American  who  would  be  sufficiently  known  to 


CHOATE  2O I 

all  the  nations  of  the  world  to  stand  a  chance  of  being  elected  as 
one  of  the  judges.  Well,  that  did  not  operate.  Nothing  would 
succeed.  And  so  it  was  remitted  to  the  various  foreign  officers  of 
all  the  nations  to  settle  this  question  of  how  those  judges  are  to 
be  selected.  I  am  very  happy  to  believe  that  under  the  wise 
guidance  of  our  present  Secretary  of  State  that  question  stands 
a  chance  of  being  rapidly  solved.  A  way  will  be  found  for  the 
selection  of  those  fifteen  judges,  to  establish  a  court  of  law,  *a 
real  court  of  law,  for  the  trial  of  all  international  questions  that 
any  nation  brings  before  it;  and  I  am  very  happy  to  believe  that 
the  great  ideal  which  all  the  orators  and  essayists  of  this  con- 
ference have  dwelt  upon  so  strongly  and  emphatically,  will  be 
realized,  either  before  the  next  Hague  Conference  or  before  we 
meet  again,  which  is  still  more  likely. 

Now  I  have  told  you  in  a  very  few  words  what  the  Hague 
Conference  did  about  this  matter  of  the  permanent  court  of  law 
for  the  adjudication  of  questions  arising  between  nations,  as  a 
substitute  for  war,  and  I  am  purposely  going  to  take  my  seat 
without  further  ado,  because  there  are  several  distinguished 
gentlemen  who  have  come  much  further  than  I  have  to  address 
you,  and  whom  I  am  sure  you  will  be  delighted  to  hear. 

THE  PRESIDING  OFFICER  (STRAUS):  Before  introducing 
the  next  speaker,  who  comes  to  us  from  England,  I  would  like 
to  call  attention  to  a  brief  notice  that  appeared  in  the  daily 
press,  and  which  probably  some  of  you  have  not  seen.  It  is  a 
telegram  which  appeared  in  the  press  to-day  from  Ottawa,  On- 
tario, and  it  is  to  the  effect  that  as  soon  as  Parliament  reassembles 
a  resolution  will  be  introduced  in  the  Canadian  Parliament 
urging  the  British  government  to  take  immediate  steps  to  make 
a  compact  with  the  United  States  which  will  forever  prevent 
blood  being  shed  hi  the  settlement  of  disputes  between  those 
two  great  English-speaking  nations.  The  resolution  will  be 
presented  by  direction  of  the  government,  not  a  voice  will  be 


202  JUDICIAL  SETTLEMENT 

raised  against  it,  and  it  will  be  transmitted  to  Westminster  as  the 
united  voice  of  Canada,  expressed  in  the  Dominion  Parliament. 
So  you  see  the  good  work  is  going  on  simultaneously,  and  this 
resolution  is  in  full  accord  with  the  famous  Olney-Pauncefote 
treaty  which  was  negotiated  in  1893  by  our  government  and 
Great  Britain,  and  which  failed.  That  treaty  was  to  establish 
a  permanent  court  between  these  two  nations,  and  it  failed,  I 
think,  on  account  of  three  votes  in  our  Senate.  I  am  very  sure 
that  the  advance  of  the  movement  since  that  time,  and  the  im- 
petus that  has  been  given  by  these  meetings,  and  by  the  intended 
action  of  the  Canadian  Parliament,  will  shortly  bring  that  treaty 
about,  which  will  be  a  step  far  in  advance  hi  bringing  about  the 
realization  of  the  court  which  Mr.  Choate  has  just  referred  to. 

I  now  have  the  honor  of  presenting  a  gentleman  who  is  the 
guest  of  the  Conference,  who  comes  to  us  from  London,  and  who 
is  the  editor  of  the  leading  economic  paper  of  Great  Britain  and 
perhaps  of  the  world,  and  the  author  of  a  work  that  has  almost 
direct  bearing  upon  international  peace,  namely,  "  The  Arbiter 
in  Council." 

I  have  the  great  pleasure  of  introducing  to  you  Mr.  Francis  W. 
Hirst. 

THE  ARBITER  IN  COUNCIL 

FRANCIS  W.  HIRST 

Mr.  Chairman,  Ladies  and  Gentlemen,  it  is  a  very  proud 
moment  to  me  that  your  honored  President  has  invited  me  to 
come  to  this  Conference;  but  I  cannot  help  expressing  sincere 
regret  that  some  more  worthy  representative  of  Great  Britain 
was  not  able  to  come,  and  I  must  add  a  further  regret  that  owing 
to  either  storm  or  draught  on  the  Mauretania,  my  voice  is  even 
less  effective  than  usual.  However,  there  is  this  consolation, 
that  if  one  of  our  great  statesmen  or  politicians  had  come  over  at 
this  time,  his  voice  also  would  probably  have  been  very  much 
impaired  by  the  elections. 


HIRST  203 

Sir,  speaking  as  a  humble^representative  of  the  press,  I  ac- 
knowledge with  great  regret  that  Mr.  Choate's  indictment  of  a 
certain  organ  of  the  British  press  was  very  well  deserved.  I 
express  on  behalf  of  other  members  of  that  profession  our  joint 
regret  that  a  writer  of  that  time  who  acted  on  behalf  of  the  "  Thun- 
derer" should  have  been  so  ill-advised  as  to  indulge  in  prophecies 
that  fortunately  have  proved  so  incorrect. 

When  I  was  asked  to  come  here,  it  occurred  to  me  at  once  that 
it  would  be  my  duty  to  bring  to  the  conference  some  message 
from  some  person  in  our  country  who  would  really  carry  weight? 
and  I  therefore  made  my  way  at  once,  as  soon  as  I  had  accepted 
the  invitation,  to  a  very  kind  friend  of  mine  who  is  now  the  Lord 
Chancellor.  He  was  good  enough  to  talk  to  me  about  the  sub- 
ject Sunday,  and  naturally  the  question  which  pressed  most 
upon  him,  as  it  presses  most  upon  us  in  Great  Britain,  was  not 
the  question  as  to  the  creation  of  any  particular  court,  but  the 
question  as  to  how  this  terrible  increasing  pressure,  this  ever- 
growing expense  of  armament,  and  particularly  of  naval  arma- 
ment, might  be  checked.  But  he  sent  me  the  next  day  a  letter 
which  I  will  venture  to  read  to  you  with  your  permission.  This 
is  from  Lord  Chancellor  Loreburn. 

"My  DEAR  HIRST: 

"I  need  not  tell  you  how  deep  and  sincere  is  my  sympathy 
with  any  movement  to  further  the  judicial  settlement  of  inter- 
national disputes,  and  how  glad  I  am  that  you  are  going  to  sup- 
port it  at  Washington.  It  is  the  hope  of  the  future,  and  will  be 
realized — I  am  confident — sooner  or  later.  And  when  it  comes 
the  world  will,  with  gratitude,  remember  the  sustained  efforts 
of  the  American  government  in  this  good  cause,  and  will  treasure 
them  among  the  loftiest  endeavors  of  great  nations. 

"With  all  my  best  wishes,  "believe  me, 

"Yours  very  truly, 

"LOREBURN." 


204  JUDICIAL   SETTLEMENT 

Lord  Loreburn's  words  always  ring  true.  He  is  no  dealer  in 
conventional  compliments  or  flashy  insincerities.  He  is  think- 
ing of  the  magnificent  pertinacity  with  which,  ever  since  Frank- 
lin's treaty  with  Frederick  the  Great,  American  statesmen  have 
pressed  for  the  commercial  freedom  of  the  seas.  The  so-called 
privileges  of  a  belligerent  navy,  piracy,  privateering,  cruising 
for  prize  money — I  give  them  in  an  ascending  order  of  merit — 
give  ground  but  slowly  to  the  march  of  civilized  ideas.  The 
Declaration  of  Paris  was  a  clear  step  forward.  We  ourselves  in 
Great  Britain  had  found  during  the  Crimean  War,  that  if  we 
maintained  our  old  system  of  interdicting  and  intercepting  neu- 
tral commerce  with  belligerents,  we  should  have  aroused  trie  hos- 
tility of  the  whole  world,  and  provoked  what  you  would  call  an 
"insurgency"  not  only  among  neutrals  but  among  our  own 
merchants  and  shippers.  British  and  French  policy  during  the 
Crimean  War  was  a  silent  acknowledgment  of  the  supremacy 
of  the  commercial  over  the  belligerent  interest.  And  perhaps, 
although  I  am  only  a  journalist,  and  perhaps,  as  Mr.  Choate,  I 
suppose,  would  say,  somewhat  an  inferior  order  of  creation; 
still,  as  I  am  a  journalist,  connected  with  commercial  and  finan- 
cial interests,  and  we  have  to  keep  our  eyes  upon  these  interests 
very  closely,  it  may  interest  you  to  know  that,  from  all  that  I 
have  seen — and  I  have  watched  these  things  very  closely  of  late 
years — this  supremacy  of  commerce  and  finance  over  interna- 
tional politics  is  becoming  ever  greater  and  more  important. 
And  in  spite  of  hostile  tariffs,  hi  spite  of  all  the  devices  which 
statesmen  in  concert  with  protected  interests  have  contrived, 
in  order  to  prevent  the  natural  flow  of  trade  from  one  nation  to 
another,  in  spite  of  all  those  things,  the  wonderful  inventions  of 
our  engineers  and  mechanics  are  constantly  bringing  nations 
together,  and  defying  all  efforts  of  tariff-mongers. 

Now,  ladies  and  gentlemen,  this  is  a  very  important  fact  in 
international  life,  and  these  efforts  which  jurists  like  your  president 
are  making  to  give  a  sort  of  legal  sanction  to  the  ever  increasing, 


HIRST  205 

ever  closer  union  between  individuals  or  different  countries  and 
between  states,  is  really  only  another  aspect  of  the  world  move- 
ment. 

Now  it  is  not  necessary  for  me  or  for  any  one  to  say  anything 
about  the  marvelous  developments  at  The  Hague,  for  we  have 
heard  them  from  the  lips  of  the  man  who  did  most  of  all  to  bring 
about  these  great  and  magnificent  international  relations,  but  I 
should  like,  if  you  will  allow  me,  to  say  a  word  or  two  upon  a 
subject  which  for  a  long  time  interested  me  very  deeply,  and 
which  seems  to  come  very  specially  before  this  Society. 

This  Society  is  especially  concerned  and  interested  in  the 
development  of  the  judicial,  as  distinguished  from  an  arbitral 
process;  and  I  can  conceive  no  more  fruitful  topic  for  inter- 
national education,  than  the  question  as  to  what  subjects  are  best 
suited  for  arbitration,  and  what  subjects  are  best  suited  for  liti- 
gation, in  fact,  as  to  what  are  proper  functions  for  arbitration  and 
for  litigation  in  international  affairs. 

The  point  which  I  should  like  to  make  is  this,  that  arbitration 
is  as  old  as  law,  and  it  has  always  been,  as  your  Society  very 
properly  conceives  it,  parallel  to  and  not  exclusive  of  legal  pro- 
ceeding. In  international  affairs  it  may  be  that  two  nations  will 
be  anxious  to  arrive  at  a  strictly  legal  decision.  It  may  be  that 
they  will  want  to  know  exactly  what  two  or  three  or  five  great 
lawyers  think  upon  some  affair  of  pure  and  unadulterated  law. 
It  may  also  be,  and  it  often  has  been  the  case,  that  two  nations 
will  wish  to  see  a  dispute  of  substance'  arbitrated  upon.  If  they 
do  that,  they  will  know,  according  to  all  the  rules  of  arbitration 
in  the  past,  that  the  arbitrators,  being  what  the  Romans  called 
good  men  rather  than  lawyers — I  do  not  mean  to  say  that  lawyers 
are  not  good  men,  I  do  not  mean  to  say  that  ambassadors  are 
not  good  men, — but  I  say  these  simple  persons,  being  merely 
good  men,  the  Romans  said,  would  endeavor  to  parcel  out  the 
advantages  of  the  awards  between  the  parties,  so  that  at  any 
rate  the  party  who  substantially  lost  would  have  something  to 


206  JUDICIAL  SETTLEMENT 

save  its  face  with.  Now,  I  think  you  will  agree  with  me  that 
there  must  be,  there  always  will  be,  some  cases  between  great 
nations  in  which  the  statesmen  concerned  would  be  very  much 
afraid  to  go  before  lawyers,  because  if  they  go  before  lawyers, 
as  Cicero  said,  they  go  upon  the  principle  that  they  will  either 
lose  everything  or  gain  everything,  and  no  statesman  would  like 
to  submit  a  very  important  matter  to  a  court  of  law  if  he  felt 
that  there  was  a  good  chance  of  his  losing  everything.  On  the 
other  hand,  in  a  case  of  that  sort,  he  will  be  ready  to  submit  it 
to  arbitration.  Now  I  hear  that  there  is  a  chance  this  year, 
or  in  the  near  future,  that  the  two  great  Anglo-Saxon  nations 
who  have  a  similar  system  of  law,  who  understand  one  another, 
will  consent,  will  agree  perhaps  in  the  near  future,  to  some  sort  of 
permanent  arrangement  by  which  matters  in  dispute  will  be 
submitted  to  a  joint  commission.  I  do  hope  that  public  opinion 
in  Washington  and  in  other  parts  of  the  United  States  will  do 
all  that  it  can  to  help  on  a  great  movement  of  this  kind,  and  I 
would  point  out  that  the  more  you  extend  the  field  of  arbitration 
to  joint  commissions  and  in  other  ways,  the  more  you  will  under- 
stand the  usefulness  of  such  a  permanent  court  as  we  are  now 
hoping  to  attain;  because  the  more  arbitration  there  is  the  more 
legal  questions  will  creep  up  between  nations,  legal  points  which 
will  have  to  be  decided  and  which  ought  to  be  decided  by  great 
judges  who  are  also  great  international  jurists.  And  here,  if  I 
may  throw  out  one  more  suggestion  to  this  Society,  it  would  be 
that  you  should  examine  and  compare  all  the  great,  leading  legal 
systems  of  the  world,  in  order  that  we  may  have  some  material 
to  go  upon,  in  order  that  a  court  of  this  sort  may  have  some 
material  upon  which  to  act  when  it  comes  to  reconcile,  not 
merely  the  laws  of  different  countries,  but  the  rules  of  interpre- 
tation which  have  grown  u<p  from  time  immemorial  in  different 
countries  of  the  world. 

That,  then,  is  the  question  which  I  specially  intended  to  bring 
before  you,  and  it  might  be  put  in  this  way :  Should  international 


HIRST  207 

courts  of  the  future  follow  strict  law,  or  should  they  be  guided  by 
equitable  considerations,  or  should  they  ente-  tain  those  notions 
of  diplomacy  and  compromise  which  are  essential  to  arbitration? 

Now  I  think  we  shall  all  agree  that  there  are  elements  of  good, 
of  utility,  in  all  these  conceptions.  As  between  individuals,  so 
between  nations,  there  is  a  place  for  the  strictest  interpretation 
of  a  statute  by  mere  lawyers  who  care  nothing  for  the  conse- 
quences and  will  not  look  beyond  the  legal  meaning  of  the 
words,  and  there  is  a  place  also  for  a  broader  and  more  equitable 
construction. 

And,  finally,  there  is  a  place,  especially  as  between  countries 
whose  laws  and  customs  have  grown  up  entirely  apart  for  thou- 
sands of  years — say  between  the  United  States  and  Japan,  or 
Italy  and  China, — for  a  mixture  of  law  or  equity  and  compro- 
mise. Law  and  justice  are  not  the  same.  A  law-suit  does  not. 
always  end  in  justice.  You  may  be  substantially  right  and  yet 
lose  everything  through  a  technical  error  or  legal  postponements. 

For  what  is  the  science  of  jurisprudence?  Listen  to  Burke 
(Vol.  Ill,  p.  134):  "The  science  of  Jurisprudence,  the  pride  of 
the  human  intellect,  which,  in  all  its  defects,  redundancies  and 
errors,  is  the  collected  reason  of  ages,  combining  the  principles  of 
original  justice  with  the  infinite  variety  of  human  concerns." 

Now  if  we  take  that  definition  of  Burke's  of  this  science  of 
jurisprudence  as  "the  collected  reason  of  ages,  combining  the 
principles  of  original  justice  with  the  infinite  variety  of  human 
concerns,"  we  shall  see  that  the  analogy  between  international  and 
national  law  is  not  and  never  can  be  quite  complete,  because  one 
of  the  functions  of  international  law  must  be  to  adjust  to,  and 
to  reconcile,  not  to  override,  conflicting  systems.  When  once  a 
convention  has  been  made  between  nations,  that  is  to  say,  when 
a  convention  or  statute  has  been  passed,  this  difficulty  ends,  and 
the  convention  or  statute  can  be  strictly  interpreted ;  but  even 
then,  a  true  international  court  of  jurists  will  have  an  inter- 
national mode  of  interpretation,  a  blend  perhaps  of  the  civil 
law  and  the  common  law,  or  of  Oriental  and  Western  rules. 


208  JUDICIAL   SETTLEMENT 

You  may  recall  that  this  noble  science  which  it  is  our  business 
to  examine  was  originally  called  the  "law  of  nature  and  of  nations." 
Under  this  comprehensive  title  was  included  the  whole  sphere 
of  moral  and  legal  obligations  and  rights,  as  between  individuals, 
as  between  the  citizen  and  the  state,  and  as  between  states. 
But  with  the  vast  increase  of  commercial  intercourse,  and  the 
development  of  communication  by  railway  and  steamer,  by  post, 
telegraph  and  telephone,  the  relations  of  states  have  multiplied 
so  enormously  and  so  incredibly,  diplomatic  intercourse  has 
begun  to  produce  such  a  crop,  not  only  of  conventions  and  treaties, 
but  of  concurrent  legislation,  that  the  legislation  of  civilized 
societies  upon  concerns  of  more  than  national  scope  tends  to  be 
unified  and  regularized.  I  need  not  dwell  upon  such  obvious 
examples  as  the  laws  of  patent  and  copyright,  the  laws  of  cheques 
and  bills-of-lading,  the  rules  as  to  collisions  at  sea.  My  object 
is  here  simply  to  point  out  that,  with  so  rich  a  growth  of  material 
before  them  for  classification  and  criticism,  jurists  have  had  good 
reason  to, adopt  Bentham's  convenient  title  "International  Law,'' 
and  to  form  a  compact  and  practical  study  of  the  legal  relations 
between  independent  states.  But  this  narrowing  of  the  vision 
has  its  dangers  as  well  as  its  uses.  The  moral  growth  of  the 
world  may  be  stunted,  and  international  cooperation  sterilized, 
if  we  allow  the  legal  formalist  to  prescribe  hard  and  fast  condi- 
tions for  the  making  or  interpretation  of  international  laws,  proc- 
esses and  procedure.  We  cannot  afford  to  substitute  red  tape 
for  an  elastic  band.  It  is  more  important  to  arrive  at  a  peaceful 
settlement  than  to  arrive  at  it  by  a  particular  path  or  in  a  partic- 
ular vehicle.  Better  to  be  punctual  on  foot  than  to  arrive  late 
in  a  motor  car. 

Our  faith  hi  the  ultimate  emergence  of  a  peaceful  and  law- 
abiding  world,  dates  from  that  noble  doctrine  of  the  perfectibility 
of  the  species  taught  in  Europe  by  the  French  Encyclopedists, 
and  interpreted  to  the  New  World  by  your  illustrious  citizen, 
Benjamin  Franklin.  Let  us  remember  that  Franklin  and  all 


HIRST  209 

his  friends  always  held —  and  I  am  sure  that  is  the  object  of  this 
Society — that  what  was  to  be  done  was  to  take  at  any  time  any 
practical  steps  that  could  be  taken  in  the  right  direction.  We 
must  not  allow  ourselves  to  think  that  every  other  nation  is  the 
same  as  our  own.  It  is  easy  for  an  Englishman  or  for  an  American 
who  understands  the  principles  of  the  common  law  to  think  that 
other  nations  ought  to  understand  the  principles  of  the  common 
law.  Let  me  remind  you  of  the  line  of  a  great  Roman  poet, 
"Mille  hominum  species,  et  rerum  discolor  usus."  That  is  not 
very  easily  translated,  but  I  will  give  you  a  sort  of  translation  io 
the  Baconian  dialect: 

"There  are  in  nature  certain  fountains  of  justice,  whence  all 
civil  laws  are  derived,  but  as  streams.  And  like  as  waters  do 
take  tinctures  and  tastes  from  the  soils  through  which  they  run, 
so  do  civil  laws  vary  according  to  the  regions  and  governments 
where  they  are  planted,  though  they  proceed  from  the  same 
fountains." 

To  forget  either  the  fountains  of  justice  and  morality,  or  the 
rich  diversity  of  laws,  religion  and  soil  through  which  the  streams 
of  law  and  custom  run,  gathering  force,  volume  and  beauty  from 
sky,  climate,  soil  and  language,  is  to  forget  everything — it  is  to 
forget  literature,  history,  politics  and  religion. 

But  if  we  reject  the  abuses  of  dry  law,  we  must  also  beware  of 
the  dangers  of  the  Utopian,  whose  "discourses,  we  are  told,  are 
as  the  stars  which  give  little  light  because  they  are  so  high." 
It  is  the  task  of  statesmen,  of  ambassadors,  of  diplomatists,  of 
international  jurists,  each  to  march  on  with  his  feet  firmly 
planted  on  the  earth,  but  not  unmindful  of  the  heavenly  light. 

With  reason  firm,  and  perfect  will 
Endurance,  foresight,  strength  and  skill. 

THE  PRESIDING  OFFICER  (STRAUS):  I  now  have  the  pleas- 
ure of  presenting  to  you  the  next  speaker  on  the  program,  Ex- 
Governor  Andrew  J.  Montague  of  Virginia,  whose  subject  is 
"The  Supreme  Court  as  a  Prototype  of  an  International  Court." 


210  JUDICIAL  SETTLEMENT 

THE  SUPREME  COURT  AS  A  PROTOTYPE  OF  AN 
INTERNATIONAL   COURT 

A.  J.   MONTAGUE 

Substantative  international  law  is  engaging  more  and  more 
the  thoughts  not  only  of  the  chancelleries  of  the  great  powers 
but  the  thoughts  and  hopes  of  the  civilized  world.  Unfortu- 
nately, but  naturally,  remedial  international  law  has  not  grown 
apace  with  substantative  international  law.  Still  the  growth  of 
international  remedies  is  not  at  all  negligible,  as  is  fully  evidenced 
by  the  last  two  Hague  Conferences.  In  the  former  Conference 
the  settlement  of  international  controversies  by  the  method  of 
arbitration  received  a  powerful  impetus;  and  in  the  latter  Con- 
ference, not  only  did  this  movement  receive  further  stimulus, 
but  two  other  international  tribunals  of  a  distinctively  juridical 
character  were  provided  for,  namely,  an  international  court  of 
arbitral  justice  and  an  international  prize  court.  Thus  rapidly 
we  seem  to  advance  from  the  arbitral  to  the  juridical  method. 
I  cannot  now  undertake  to  distinguish  between  the  arbitral  court 
and  the  prize  court  of  The  Hague.  Both  may  live,  but  at  this 
time  the  prize  court  seems  the  more  certain  of  organization,  with 
the  resultant  probability  that  it  will  attract  within  its  jurisdiction 
the  judicial  power  originally  contemplated  for  each  of  these  tri- 
bunals. But  my  purpose  on  this  evening  is  to  assume  the  exist- 
ence of  a  juridical  method  for  the  settlement  of  a  very  large  class 
of  controversies  between  nations,  and  to  submit  as  my  theme: 
The  Supreme  Court  as  a  Prototype  of  an  International  Court. 

The  Supreme  Court  was  by  reason  of  its  origin  and  jurisdiction 
intended  to  administer  international  justice  in  some  of  its  forms. 
Its  prescribed  jurisdiction  of  controversies  to  which  the  United 
States,  the  States  or  foreign  nations  shall  be  a  party,  as  well  as 
cases  involving  treaties  and  affecting  ambassadors,  ministers  and 
consuls,  foreshadowed  an  exercise  of  such  judicial  power,  which 


MONTAGUE  211 

has  been  confirmed  by  many  subsequent  adjudications  inter- 
preting and  applying  the  law  of  nations. 

"From  the  very  nature  of  things,"  says  Webster,  "and  the 
frame  of  the  Constitution,  it  forms  the  point  at  which  our  dif- 
ferent systems  of  government  meet  in  collision,  when  unhappily 
collision  exists.  By  the  absolute  necessity  of  the  case  the  mem- 
bers of  the  Supreme  Court  become  judges  of  the  extent  of  consti- 
tutional powers.  They  are,  if  I  may  call  them,  the  great  arbi- 
trators between  contending  sovereignties."  Pinkney  was  moved 
to  exult  "upon  the  proud  spectacle  of  the  peaceful  judicial 
review  of  these  conflicting  sovereign  claims  by  this  more  than 
Amphictyonic  Council";  and  Horace  Binney  declared  the  court 
to  be  "the  greatest  moral  substitute  for  force  in  controversies 
between  the  people,  the  States  and  the  Union."  Similar  expres- 
sions of  appreciation  and  prophecy  are  found  in  the  Federalist, 

Publicists  and  jurists  of  other  lands  have  also  recognized  the 
international  character  of  this  court.  DeTocqueville  says:  "In 
the  nations  of  Europe,  the  courts  of  justice  are  only  called  upon 
to  try  the  controversies  of  private  individuals;  but  the  Supreme 
Court  of  the  United  States  summons  sovereign  powers  to  its 
bar."  Sir  Henry  Maine  considered  it  "  not  only  the  most  interest- 
ing but  a  virtually  unique  creation  of  the  founders  of  the  Con- 
stitution." Lord  Brougham  esteemed  it  "the  very  greatest 
refinement  of  social  policy  to  which  any  state  of  circumstance 
has  ever  given  rise,  or  to  which  any  age  has  ever  given  birth." 
And  John  Stuart  Mill  declared  the  court  "the  first  example  of 
what  is  now  one  of  the  most  prominent  wants  of  civilized  society, 
a  real  International  Tribunal."  Consequently,  it  would  not  be 
inaccurate  to  conclude  that  the  Supreme  Court  is  the  most  dis- 
tinctively international  court  the  world  has  thus  far  seen,  and  to 
suggest  that  no  new  court  of  international  justice  could,  though 
of  the  amplest  possible  jurisdiction  and  dignity,  study  the  origin ? 
character,  growth  and  working  of  this  American  model  of  judi- 
cature without  inestimable  compensation. 


212  JUDICIAL   SETTLEMENT 

The  application  of  its  jurisdiction  has  necessarily  been  largely 
an  evolutionary  development.  But  such  form  of  growth  should 
not  detract  from  the  force  of  its  example  as  an  international  court; 
for  this  method  of  development  is  inherent  in  all  social  and  civil 
progress.  The  orbit  of  its  jurisdiction  has  not  proven  inflexibles 
which  would  be  impossible  if  not  undesirable.  Racial  aptitudes 
and  civil  instincts  inevitably  contract  or  expand  written  constitu- 
tions or  formulae  of  governments.  The  motions  and  currents 
of  civilization  inexorably  forge  and  fabricate  canons  of  construc- 
tion that  alarm  or  satisfy  as  may  be  the  temper  of  the  times.  Lan- 
guage is  the  servant  and  not  the  master  of  society,  and  theories 
of  constitutional  construction  and  juridical  jurisdiction  ultimately 
yield  to  the  geographical,  political  and  ethnic  forces  of  country 
and  peoples,  which  have  been  and  are  now  making  for  unification 
or  nationalism  in  the  American  system.  Once  establish  an  inter- 
national court,  and  it  too  will  exercise  its  judicial  power  under  the 
laws  of  human  growth,  and  will  find  duties  and  opportunities 
not  wholly  dissimilar  to  those  which  from  time  to  time  have  been 
met  by  our  Supreme  Court,  save  that  the  preservation  rather 
than  the  consolidation  of  States  is  likely  to  be  the  line  of  least 
resistance  in  the  progress  and  development  of  the  jurisdiction  of 
the  arbitral  court. 

The  history  of  the  Supreme  Court  demonstrates  that  it  was 
largely  designed  to  supercede  the  clumsy  arbitrational  tribunals  of 
the  Articles  of  Confederation.  Aribtration  under  that  compact 
had  not  proved  acceptable.  Of  some  six  cases  only  one  ever 
developed  an  opinion  from  the  Commissioners,  that  of  Penn- 
sylvania vs.  Connecticut.  The  failure  of  these  methods  was, 
however,  due  to  the  nature  of  arbitration  itself.  Submission 
to  its  jurisdiction  was  not  compulsory,  for  the  Congress  reserved 
the  right  to  withhold  authorization  of  the  commission.  Then 
the  arbitrators  were  not  chosen  in  advance  of  the  origin  or  sub- 
mission of  the  controversy;  they  were  appointed  by  the  litigants 
or,  upon  their  failure  so  to  do,  the  selection  was  made  by  a  sort 


MONTAGUE  213 

of  chance;  thus  never  satisfying  the  parties  or  appealing  to  the 
confidence  or  imagination  of  the  people.  In  short,  this  tribunal 
of  the  Articles  of  Confederation  was  political  and  not  juridical, 
hence  its  doom  to  failure. 

While  arbitration  has,  from  tune  to  time,  been  a  temporary  sub- 
stitute for  juridical  tribunals,  this  mode  for  determining,  in  pais, 
private  controversies  has  seldom  been  satisfactory,  has  never  been 
largely  employed,  and  has  not,  unfortunately,  materially  lessened 
litigation.  The  fatal  infirmity  of  this  method  of  trial  is,  as  has 
been  suggested,  inherent  in  the  object  and  mode  of  selecting 
the  members  of  the  commission.  The  creators  of  arbitrators 
are  the  litigants,  and  they  usually  strive  to  name  members  favor- 
able to  their  interests,  yielding  to  an  irresistible  temptation  of 
jockeying  for  a  man  of  temperamental  partiality  upon  the  com- 
mission. True  judges  should  never  arise  out  of  the  controversy; 
the  case  should  never  await  the  judges — they  should  ever  await 
the  case.  Burke  has  wisely  said:  "Whatever  is  supreme  in  a 
State  ought  to  have,  as  much  as  much  as  possible,  its  judicial 
authority  so  constituted  as  not  only  to  depend  upon  it,  but  in 
some  sort  to  balance  it.  It  ought  to  give  security  to  its  justice 
against  its  power.  It  ought  to  make  its  jurisdiction,  as  it  were, 
something  exterior  to  the  State."  Tested  by  this  profound 
reflection  it  would  seem  that  arbitration  must  necessarily  sub- 
ordinate this  superior  and  exterior  power,  while  the  juridical 
method  must  conserve  and  amplify  it. 

In  the  Convention  of  1787,  the  proposal  to  retain  and  incor- 
porate in  the  Federal  Constitution  the  ninth  Article  of  Con- 
federation respecting  arbitration  was  unanimously  rejected;  and, 
to  show  the  temper  of  the  Convention  in  pursuit  of  the  juridical 
ideal,  a  proposal  was  also  defeated  to  give  the  Supreme  Court, 
in  conjunction  with  the  executive,  revisory  powers  over  legis- 
lative enactments.  Indeed,  early  in  its  life  the  court  disap- 
proved of  the  performance  by  the  judiciary  of  certain  executive 
functions  imposed  by  Congress  for  the  administration  of  pension 


214  JUDICIAL   SETTLEMENT 

laws;  and,  shortly  after,  the  court  also  declined  to  comply  with 
Washington's  request  for  a  judicial  construction  of  the  French 
treaty  in  connection  with  Genet's  conduct.  Likewise  did  the 
court  refuse  to  intervene  in  the  matter  of  "Dorr's  Rebellion," 
upon  the  ground  that  the  question  involved  was  political  and 
not  juridical.  The  action  of  the  court  in  these  instances,  how- 
ever, meant  more  than  a  disposition  of  jurisdictional  questions; 
it  meant  the  divorce  of  the  court  from  all  participation  in  poli- 
tics or  in  the  administration  of  other  departments  of  govern- 
ment. But  it  might  be  added  that  the  separation  of  the  three 
cardinal  departments  of  government  largely  contributed  to  the 
attainment  of  this  fortunate  isolation  by  confining  the  exercise 
of  judicial  power  within  a  more  rigid  and  well  denned  orbit. 

These  precedents  are  striking  examples  of  the  saving  virtue 
of  that  juridical  detachment  which  the  arbitral  court  may  find 
occasion  profitably  to  follow,  though  of  course  its  jurisdiction 
must  necessarily  and  largely  trench  upon  the  domain  of  politics. 
But  the  impressive  lesson  of  our  experience  is  found  in  the  con- 
trast of  arbitration  under  the  Confederation  with  the  juridical 
method  under  the  Constitution,  exhibiting  the  weakness  of  the 
former  and  the  vigor  of  the  latter,  and  thus  disclosing  the  trans- 
cendent opportunity  and  mission  of  an  international  court. 

The  moral  elevation  and  judicial  isolation  of  the  Supreme 
Court  are  largely  attributable  to  the  mode  of  appointing  its 
justices,  who  are  not  chosen  by  popular  clamor,  or  in  the  in- 
trigues of  the  caucus,  or  through  the  stratagems  of  legislators, 
but  by  an  enlightened,  responsible  executive,  "by  and  with  the 
advice  and  consent"  of  a  group  of  statesmen,  trained  by  juridical 
usage  and  ideals.  An  analogous  mode  of  appointment  of  the 
arbitral  court  should  be  considered  by  the  signatory  nations. 
Could  not  these  sovereignties  find  a  method  equally  free  from 
diplomacy,  and  equally  detached  from  national  bias?  The 
various  forms  of  the  governments  concerned  necessarily  pre- 
clude a  uniform  mode  of  appointment;  but  a  uniform  principle 


MONTAGUE  21$ 

of  selection,  elevated  and  practicable,  could  and  should  be  devised, 
if  the  arbitral  court  is  to  be  a  success.  Is  it  not  expedient  for 
the  executives  of  the  interested  nations  to  select,  by  and  with 
the  advice  and  consent  of  their  highest  courts  of  judicature 
or  their  upper  legislative  branches,  such  jurists  as  are  needed 
to  administer  this  court?  Could  not  the  method  of  appoint- 
ment of  the  Supreme  Court  be  adopted,  mutatis  mutandis, 
by  the  several  powers?  Indeed,  is  it  not  vital  to  the  very  origin 
and  life  of  the  arbitral  court  to  adopt  the  principle  which  is 
used  in  the  selection  of  members  of  the  Supreme  Court?  It 
is  regrettable,  however,  that  this  principle  of  appointment 
should  already  be  embarrassed  by  an  expression  in  the  second 
article  of  The  Hague  Convention  of  a  preference  for  the  selec- 
tion of  the  members  of  the  first  arbitral  court  from  the  panel 
or  list  of  eligibles  of  the  permanent  tribunal  of  arbitration. 

Two  great  elements  in  the  stability  of  our  Supreme  Court 
are  the  fixed  minimum  compensation  and  the  life  tenure  of  its 
justices.  The  measure  of  this  compensation  might  well  be 
followed  in  the  arbitral  court,  for  while  the  principle  of  a  fixed 
compensation  is  therein  prescribed,  its  practical  exemplification 
is  inadequate.  The  triumphant  arguments  of  Alexander  Ham- 
ilton upon  the  tenure  of  office  of  members  of  the  Supreme  Court 
during  good  behavior  have  been  vindicated  by  the  experience 
and  success  of  this  tribunal,  and  these  arguments  might  appro- 
priately be  renewed  if  they  were  not  rendered  irrelevant  by 
the  conclusion  of  The  Hague  Convention  on  this  subject.  But 
this  stability  is  not  unalterable;  the  power  of  impeachment  of 
the  justices  is  reserved.  Of  course,  this  method  of  removal 
could  not  and  should  not  be  employed  in  an  international  court, 
for  it  is  manifest  that  a  request  by  any  government  for  the 
removal  of  a  member  of  the  arbitral  court,  the  request  to  con- 
tain the  alleged  grounds  of  unfitness,  would  afford  ample  remedy. 

The  number  of  justices  of  the  Supreme  Court  is  not  fixed 
by  our  organic  law,  but  it  is  quite  certain  that  this  number  will 


2l6  JUDICIAL   SETTLEMENT 

never  be  so  enlarged  as  to  render  the  court  an  assembly  or  par- 
liament of  jurists.  Perhaps  its  present  number  is  final.  How- 
ever, the  reasons  which  have  determined  this  number  could 
be  advantageously  considered  in  arriving  at  the  number  of  mem- 
bers of  the  arbitral  court;  and  it  is  to  be  hoped  that  similar  con- 
siderations may  forbid  so  bulky  an  organization  of  this  court  as 
to  make  it  unworkable.  The  difficulties  surrounding  this  ques- 
tion are  most  complex,  but  a  study  of  the  origin  and  experience 
of  our  court  will  supply  a  most  instructive  precedent. 

I  need  not  accentuate  the  advantages  of  the  regular  sessions 
of  the  Supreme  •  Court  as  an  example  for  the  arbitral  court. 
Periodic  session  is  an  inherent  and  elementary  attribute  of 
any  juridical  tribunal,  and  this  essential  must  have  been  poten- 
tial in  effecting  the  convention  establishing  the  arbitral  court. 
That  justice  may  be  ready,  free  and  continuous,  requires  a  fixed 
time  and  place  for  its  administration.  The  absence  of  this  ele- 
ment of  juridical  administration  has  been  one  of  the  most  pal- 
pable infirmities  of  arbitrations,  and  it  is  to  be  hoped  that  there 
may  not  be  such  repeated  use  of  the  judicial  committee  pre- 
scribed by  the  Hague  Convention  as  an  adjunct  of  the  arbitral 
court  as  to  interrupt  its  functional  continuity.  I  am  rather 
apprehensive  of  a  too  free  substitution  or  intervention  of  this 
committee.  The  probable  size  of  the  court,  and  the  insignificant 
compensation  of  its  members,  would  seem  to  necessitate  an 
unfortunately  recurrent  exercise  of  the  powers  of  this  committee. 
The  Supreme  Court  could  hardly  have  achieved  its  success 
under  such  a  method  of  ancillary  or  auxiliary  administration. 

Perhaps  the  system  of  a  procedure  in  the  Supreme  Court  for 
the  trial  of  causes  of  both  original  and  appellate  jurisdiction 
cannot  be  followed  by  the  arbitral  court,  yet  the  simplicity  and 
precision  of  our  pleadings,  the  completeness  of  the  record,  the 
orderly  arrangement  of  the  trial  or  hearing,  and  the  method  of 
arriving  at  a  judgment  and  opinion  in  conference,  is  no  mean 
model  for  any  world  tribunal. 


MONTAGUE  217 

The  arbitral  court  should  find  profound  encouragement  in 
the  success  with  which  the  Supreme  Court  has  administered 
various  systems  of  jurisprudence.  The  common  law  and  the 
chancery  system  of  England,  with  the  material  statutory  changes 
or  modifications  obtaining  in  the  several  states,  and  the  Roman 
law,  together  with  the  modifications  wrought  in  that  system 
by  Spain,  France  and  Louisiana,  have  all  been  considered  and 
administered  from  tune  to  tune  by  our  court  with  facility  and 
success.  These  several  systems  have  not  been  incompatible 
with  the  form  of  procedure  employed  by  the  Supreme  Court. 
Indeed,  through  the  operation  of  our  supreme  judicial  crucible 
these  differing  laws  have  come  to  wear  a  strong  and  sure  likeness 
which  would  seem  to  presage  that  more  homogeneous  juris- 
prudence be  evolved  by  the  arbitral  court  into  a  soldered  system 
of  international  equity. 

Sir  Frederick  Pollock  believes  the  law  of  nations  to  consist 
of  "those  customs  and  observances  in  an  imperfectly  organized 
society  which  have  not  fully  acquired  the  character  of  law,  but 
are  on  the  way  to  become  law."  This  definition  will  answer 
my  immediate  purpose.  I  should  say,  then,  that  for  the  improve- 
ment of  this  imperfect  organization  we  should  develop  a  more 
clearly  defined  system  of  international  jurisprudence;  and,  in 
perfecting  such  a  system,  what  could  be  more  potent  than  the 
administration  of  international  justice  by  an  international 
court?  Justice,  international  as  well  as  national,  must  grow 
step  by  step,  and  the  chief  factors  of  this  growth  are  the  for- 
mulated opinions  of  a  great  court  upon  adjudicated  facts,  build- 
ing instance  upon  instance,  precedent  upon  precedent,  and  thus 
evolving  a  system  of  law  from  continuous  usage  or  custom. 
The  administration  of  justice  makes  law,  as  often  as  the  law 
makes  administration;  each  acts  and  reacts  upon  the  other. 
In  interpreting  treaties,  in  determining  differences  between 
nations,  in  adjusting  frictional  controversies,  such  as  the  blowing 
up  of  the  Maine,  and  the  Dogger  Bank  incident,  the  arbitral 


2l8  JUDICIAL   SETTLEMENT 

court  might  well  take  as  a  model  the  dignity,  impartiality  and 
force  of  the  opinions  of  the  Supreme  Court,  thereby  powerfully 
improving  and  developing  the  "customs  and  observances"  of 
nations  into  an  ordered  system  of  jurisprudence. 

The  judgments  of  the  Supreme  Court  upon  many  subjects 
of  international  law,  private  and  public,  must  be  profoundly 
instructive  to  the  arbitral  court.  Beginning  with  Ware  vs 
Hylton  in  1796  down  to  Missouri  vs.  Illinois,  and  Kansas  vs. 
Colorado,  in  1906,  where  the  controversy,  if  occurring  between 
more  independent  sovereigns,  might  have  been  a  casus  belli,  the 
Supreme  Court  has  had  to  pass  upon  questions  of  territory,  com- 
ity, treaties,  domicil,  visit  and  search,  prize,  neutrals,  belliger- 
ents, privateering,  piracy,  letters  of  marque  and  reprisal,  contra- 
band, embargo,  blockade,  and  that  congeries  of  relations  between 
the  States.  In  this  sphere  of  politico-jurisprudence  the  judg- 
ments of  the  court  have  met  with  almost  universal  commenda- 
tion, unless  we  except  Rose  vs.  Himely,  in  which  the  court  de- 
clared the  right  to  examine  the  jurisdiction  of  a  foreign  courtj 
and  to  disregard  its  sentence  of  condemnation  if  contrary  to 
the  law  of  nations,  but  which  has  subsequently  been  overruled 
by  an  unbroken  line  of  decisions.  Indeed,  the  extraordinary 
success  of  the  Supreme  Court  in  this  delicate  and  difficult  field 
of  jurisprudence  should  be  an  effective  inspiration  in  exercising 
similar  judicial  power  by  the  arbitral  court. 

But  the  classes  of  cases  just  enumerated  do  not  exhaust  the 
analogies.  The  extraordinary  power  to  determine  the  constitu- 
tional invalidity  of  statutes,  as  well  as  the  nature  and  extent 
of  interstate  commerce,  although  arising  directly  under  our 
Federal  Constitution,  verge  somewhat  upon  cognate  principles. 
For  example,  how  far  may  contracts  between  enemy  subjects 
be  declared  void  as  contrary  to  the  general  law  of  nations? 
How  far  may  treaties  of  territorial  delimitation  be  adjudged 
invalid  by  reason  of  war  between  belligerent  nations?  And 
what  is  commerce?  When  is  it  domestic  and  when  foreign? 


MONTAGUE  219 

And  what  is  the  "open  door"  in  international  trade?  Some 
aspects  of  these  pervasive  subjects  may  at  some  inconvenient 
season  press  for  judgment  upon  the  international  tribuna^ 
and  the  opinion  of  our  Supreme  Court  will,  more  than  any  other 
governmental  institution  in  the  world,  contribute  suggestive 
solutions.  Again,  the  class  of  cases  arising  under  the  Judiciary 
Act  of  1789,  wherein  the  Supreme  Court  applies  the  laws  of  the 
several  States  to  cases  arising  in  such  States,  should  be  specially 
serviceable,  this  rule  being  substantially  one  of  private  interna- 
tional law.  It  may  be  true  that  the  application  of  this  particu- 
lar rule  has  exhibited  some  judicial  eccentricity,  but  this  would 
hardly  negative  its  value  as  a  precedent. 

In  the  mode  of  enforcing  its  judgments  the  arbitral  court  will 
find  no  discouragement  in  the  experience  of  the  Supreme  Court 
in  satisfying  without  force  its  judgments  or  decrees  against  the 
States.  In  the  case  of  Olmstead  or  the  sloop  Active  a  posse 
comiiatus  of  two  thousand  men  was  employed  in  the  collection 
of  a  judgment  against  Pennsylvania,  which  was  resisting  pro- 
cess by  an  armed  force.  This  is  perhaps  the  only  instance  of 
the  employment  of  force  in  the  execution  of  the  mandates  of 
Supreme  Court,  all  other  judgments  or  decrees  against  the  States 
having  either  been  abandoned  or  voluntarily  satisfied.  Unfor- 
tunately, in  our  early  history,  some  of  the  State  courts  met 
the  judgments  of  the  Supreme  Court  in  a  very  recalcitrant  spirit. 
In  1793,  in  the  case  of  Chisholm  vs.  Georgia,  its  decree  was  dis- 
regarded by  Georgia,  whose  legislature  went  so  far  as  to  pass  a 
statute  denouncing  the  penalty  of  death  against  any  person 
attempting  to  enforce  process  hi  the  State.  The  Eleventh 
Amendment  was  adopted  to  remove  this  dangerous  cause  of 
friction,  but  the  cases  of  Hunter  vs.  Martin,  in  1816,  McCulloch 
vs.  Maryland  in  1819,  and  Cohens  vs.  Virginia,  in  1821,  aroused 
critical  and  almost  resisting  forces.  Spencer  Roane,  a  son-in- 
law  of  Patrick  Henry,  presiding  Judge  of  the  Court  of  Appeals 
of  Virginia,  and  "  slated"  for  the  Chief  Justiceship  of  the  Supreme 


220  JUDICIAL   SETTLEMENT 

Court  by  Jefferson,  prepared  and  had  passed  by  the  Virginia 
Legislature  a  prospective  amendment  to  the  Federal  Consti- 
tution declaring  that  "The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  case  in  which  a  State 
shall  be  a  party,  except  in  controversies  between  two  or  more 
States,  nor  to  any  other  controversies  involving  the  rights  of 
a  State  and  to  which  such  State  shall  claim  to  become  a  party. 
That  no  appeal  shall  be  considered  to  lie  to  any  court  of  the 
United  States  from  any  decision  rendered  in  the  courts  of  a 
State." 

It  is  true  that  the  Supreme  Court  can  command  all  force  nec- 
essary for  the  enforcement  of  its  judgments,  while  the  inter- 
national sheriff  or  constabulary  will  be  long  unknown  to  the 
arbitral  court,  though  some  eminent  men  have  recently  sug- 
gested the  establishment  of  an  international  constabulary  in 
the  form  of  an  army  and  navy  for  the  enforcement  of  the  judg- 
ments of  the  arbitral  court.  The  point,  however,  most  to  be 
observed  is  that  the  experience  of  the  Supreme  Court  must  give 
great  comfort  to  those  who  believe  that  the  mandates  of  the  arbi- 
tral court  will,  by  force  of  the  universal  conscience,  receive  vol- 
untary satisfaction  by  any  nation  against  whom  directed. 

However,  the  right  to  employ  force  in  execution  of  judgments 
suggests  the  one  great  lack  of  analogy  between  the  courts  now 
under  consideration,  namely,  that  the  American  tribunal  is  the 
instrument  of  a  federal  system,  defined  and  limited  by  a  written 
constitution;  whereas,  the  arbitral  court  is  an  institution  of 
nations  not  coordinated  in  any  federation  whatever.  But 
despite  this  differentiation,  I  would  insist  that  the  scope  of  juris- 
diction of  the  Supreme  Court,  its  opinions  upon  questions  of 
much  similarity,  and  involving  the  application  of  the  principles 
of  justice  universally  recognized  by  civilized  peoples,  will  afford 
a  body  of  illuminating  analogies  of  profound  significance  and 
inspiration. 

The  arbitral  Hague  court  has  jurisdiction  concurrent  with  that 


MONTAGUE  221 

of  the  pemanant  court  of  arbitration.  Choice  of  access  will  thus 
be  afforded  the  august  litigants,  and  valuable  comparisons  can 
thus  be  instituted.  That  tribunal  is  likely  to  survive  which 
supplies  the  better  administration,  and  the  American  experi- 
ence is  sure  to  predict  a  survival  of  the  juridical  method.  But 
the  excellence  of  systems  is  not  alone  adequate  for  the  successful 
administration  of  any  human  institution.  The  personal  equa- 
tion presents  the  supreme  problem,  the  ever  recurrent  mani- 
cheism  of  the  task.  Can  there  be  secured  for  the  arbitral  court 
trained  jurists  of  the  requisite  character  and  capacity,  jurists 
with  the  genius  of  personal  detachment  from  all  national  and 
racial  environment,  and  with  courageous  adherence  to  the  line 
of  judicial  duty?  If  this  can  be  done,  the  work  is  already  well 
done.  In  this  winnowing  of  men  does  the  personnel  of  the  Su- 
preme Court  afford  a  standard?  This  court  needs  no  fervent 
advocacy  or  facile  assentation.  Mistakes  in  its  appointments 
and  in  its  decisions  have  sometimes  been  made.  But  if  the 
arbitral  court  can  obtain  a  membership  of  jurists  of  the  like  order 
of  those  who  have  for  over  a  hundred  years  administered  the 
judicial  power  of  the  Supreme  Court,  then  it  is  not  too  much 
to  predict  that  the  international  jurisprudence  of  the  future 
will  be  an  expanding  influence  and  a  commanding  power  among 
nations  for  the  settlement  of  their  controversies  in  a  manner 
creditable  and  beneficial  to  the  human  race.  This  prediction 
is  no  audacious  fancy  if  only  the  arbitral  court  will  do  for  the 
family  of  nations  what  the  Supreme  Court  has  done  for  the  family 
of  States. 

THE  PRESIDING  OFFICER  (STRAUS):  The  next  speaker, 
lawyer,  jurist,  judge  and  governor-elect  of  Connecticut,  has 
contributed  for  many  years  and  largely  to  the  development 
of  the  knowledge  and  sentiment  of  international  peace.  I  will 
not  take  up  the  time  that  I  wish  him  to  occupy,  but  I  will  quote 
as  a  preface  to  his  introduction,  a  statement  made  by  the  most 


222  JUDICIAL   SETTLEMENT 

distinguished  recipient  of  the  Nobel  prize,  in  an  address  he  re- 
cently made  in  New  Haven.  I  refer  to  Mr.  Roosevelt,  who  said : 

"Peace  must  come,  if  it  is  to  be  of  the  slightest  good,  as  the 
child  of  justice  and  not  of  weakness." 

I  have  the  great  pleasure  of  presenting  to  you  Governor-elect 
Simeon  E.  Baldwin,  of  Connecticut,  who  will  address  us  on  The 
Evolution  of  the  International  Court. 


THE  EVOLUTION  OF  THE  INTERNATIONAL  COURT 

SIMEON  E.  BALDWIN 

Nothing  of  human  handiwork  that  comes  to  stay  is  suddenly 
conceived  or  produced.  It  is  this  law,  which  it  was  the  main 
work  of  the  nineteenth  century  to  show  to  be  of  a  universal  type 
that  gives  courage  to  the  members  of  this  Society  in  looking  to 
the  establishment  of  international  courts.  They  seem  to  us  the 
natural  and  logical  outcome  of  what  has  already  been  accom- 
plished. They  are  the  proper  crown  for  nations,  of  that  great 
world-work,  "the  progressive  elaboration  of  Right." 

There  was  good  reason  that  the  first  association  to  promote 
the  judicial  settlement  of  international  disputes  should  be  organ- 
ized on  this  continent.  Here,  in  1650,  was  what  may  be  not 
unfairly  claimed  as  the  real  beginning  for  modern  times  of  the 
settlement  of  disputes  of  such  a  nature,  which  have  actually 
arisen,  by  arbitration,  proceeding  from  no  authority  but  that  of 
the  immediate  parties  to  it,  and  before  one  (or  more)  not  in 
the  position  of  a  sovereign. 

Greece  had  practised  arbitration  to  some  extent.  Rome  had 
not,  at  least  in  her  days  of  claims  to  universal  empire,  because 
it  was  inconsistent  with  those  claims. 

The  Eternal  City,  through  the  papacy,  had  later  been  its 
recognized  seat,  universally  before  the  Protestant  Reformation, 
and  to  some  extent  after  it.  But  the  pope  had  been  appealed 


BALDWIN  223 

to  in  such  arbitrations  as  the  rightful  mediator  and  appointed 
Judge,  acting  under  a  divine  commission. 

Towards  the  close  of  the  seventeenth  century,  under  the  Treaty 
of  Ryswick,  we  see  Clement  XI  acting  as  umpire  in  an  arbitra- 
tion, by  virtue  of  a  mere  agreement,  rather  than  in  his  character 
of  a  divinely  appointed  preserver  of  civil  order  in  the  world. 
But  almost  fifty  years  before  that  treaty  we  find  the  representa- 
tives of  two  Protestant  powers  parties  to  a  scheme  of  international 
arbitration,  which  speedily  brought  a  serious  differences  to  a 
peaceful  issue. 

As  the  Netherlands  in  recent  years  have  given  the  impulse  to 
the  foundation  of  international  agreements  for  reducing  the 
causes  of  war  and  narrowing  its  field,  and  made  The  Hague  a 
center  of  world-opinion,  so  two  centuries  and  a  half  ago,  on  Amer- 
ican soil,  it  was  from  one  of  her  colonies  that  proceeded  the  over- 
ture which  led  to  the  establishment  on  a  new  continent  of  a 
better  method  of  adjusting  international  differences. 

The  place  of  the  boundary  between  the  Dutch  and  English 
settlements  west  of  the  Connecticut  River  was  in  controversy. 
The  four  English  colonies  had  formed  a  confederation  styled 
the  United  Colonies  of  New  England.  Its  annual  Congress  of 
Commissioners  from  each  colony,  in  session  at  Hartford,  was 
approached  by  Governor  Stuyvesant  of  New  Netherland  with  an 
offer  to  submit  the  controversy  to  arbitration.  The  offer  was  ac- 
cepted; each  side  named  two  arbitrators;  a  hearing  was  promptly 
had  before  them;  and  a  judgment  rendered  on  September  19, 
1650,  fixing  the  line  in  a  certain  manner,  subject  to  the  ratifi- 
cation of  the  two  sovereigns  concerned,  England  and  Holland. 

Holland  ratified  it  in  1656.  England  never  did.  Her  atten- 
tion was  diverted  by  the  civil  war  to  larger  questions.  This 
arbitration  took  place  only  a  few  months  after  the  execution  of 
Charles  I.  A  naval  war  with  Holland  followed  two  years  later. 
Cromwell  did  not  assume  the  position  of  Lord  Protector  until 
1653,  and  then  was  little  disposed  to  do  anything  that  would  con- 


224  JUDICIAL   SETTLEMENT 

firm  the  title  of  the  Netherlands  to  any  soil  claimed  by  English- 
men. While,  therefore,  England  and  that  country  became  allies 
in  1654,  and  the  Netherlands  promptly  took  action  towards  call- 
ing the  attention  of  England  to  the  Hartford  arbitration,  nothing 
was  done  during  the  Protectorate  towards  its  confirmation,  and 
under  the  Restoration  the  grant  of  New  York  to  the  Duke  of 
York  and  the  expulsion  of  the  Dutch  soon  removed  all  occasion 
for  such  action. 

International  arbitrations  have  led  up  to  the  conception  of 
international  courts,  with  a  supreme  jurisdiction  over  sovereign 
states  consenting  to  ligitate  before  them,  because,  for  one  reason, 
in  such  arbitrations,  the  judgments  of  the  highest  national  courts 
have  in  fact,  in  actual  practice,  often  been  overruled.  We  have 
thus  become  familiar  with  the  possibility  and  practicability  of 
allowing  national  judgments  to  be  set  aside  or  disregarded  by 
international  judgments. 

No  court  in  the  world  is  more  imposing  hi  its  mode  of  consti- 
tution and  range  of  powers  than  the  Supreme  Court  of  the  United 
States,  but  Americans  have  frequently  submitted  to  the  practi- 
cal revision  of  its  judgment  by  international  tribunals.  They 
have  not  been  formally  revised,  but  they  have  been  pronounced 
unsound,  and  the  controversy,  which  they  assumed  to  terminate, 
re-opened  and  re-decided  in  a  different  way.  The  judgments 
complained  of  continue  to  exist,  but  they  are  held  not  to  bind  the 
parties  to  them  in  the  presence  of  an  international  tribunal. 
They  have  found  there  a  still  higher  source  of  authority. 

Modern  civilization  has  led  up  to  the  conception  of  international 
courts,  in  quite  another  way,  and  from  quite  a  different  direction. 

With  the  vast  spread  of  commercial  intercourse  between  nations, 
in  recent  years;  with  the  frequent  investments  by  one  sovereign  in 
what  lies  within  the  territory  of  another,  or  in  the  public  funds  of 
the  latter;  and  with  the  multiplication  of  contracts  by  one  sovereign 
with  the  subjects  of  another,  occasions  have  greatly  increased 
for  suits  by  sovereigns  in  the  courts  of  other  sovereigns.  Such 


BALDWIN  225 

suits  are  everywhere  sustained,  but  it  is  not  so  with  suits  against 
a  foreign  sovereign.  He  can  be  sued,  whether  at  home  or  abroad, 
only  by  his  own  consent. 

Hence  has  resulted  a  one-sided  kind  of  justice.  There  is  a 
class  of  plaintiffs,  who  can  vindicate  their  rights  by  recourse  to 
judicial  tribunals,  but  there  is  no  corresponding  class  of  defend- 
ants. The  courts  of  every  nation  are  open  for  suits  by  foreign 
sovereigns,  but  closed  to  suits  against  foreign  sovereigns. 

This,  if  not  injustice,  looks  much  like  it,  and  it  has  been  seen 
that  there  is  no  remedy  except  by  setting  up  international  courts. 

Both  the  sets  of  Hague  Conferences,  those  relating  to  Public 
International  Law,  and  those  relating  to  Private  International 
Law,  held  during  the  last  twenty  years,  have  contributed  to  the 
establishment  of  international  courts,  not  only  by  formally  pro- 
posing two,  and  by  setting  on  foot  an  actual  tribunal  of  arbitra- 
tion at  The  Hague,  but  hardly  less  by  formulating  rules  of  inter- 
national law,  public  and  private,  which  are  already  widely  fol- 
lowed in  judicial  proceedings. 

The  London  Conference  of  1908-9,  which  was  the  direct  out- 
growth of  the  Hague  Conference  of  1907,  has  made  a  contribu- 
tion of  far-reaching  importance  to  this  body  of  jurisprudence. 
Composed,  as  it  was,  of  the  leading  naval  powers  in  the  world, 
and  dealing  with  questions  in  which  every  commercial  country 
is  deeply  interested,  it  is  a  tribute  to  the  intellectual  honesty  of 
our  age  that  so  many  nations,  rivals  on  the  seas,  could  agree  on  so 
much,  as  being  either  already  settled  taw,  or  as  suitable  for  adop- 
tion as  law,  then  and  there. 

Do  we  ask  how  international  judgments  can  be  enforced? 

It  is  not  thinkable,  in  this  era  of  world  history,  that  any  nation, 
after  agreeing  to  submit  a  controversy  to  a  judicial  tribunal  for 
determination,  should  fail  to  do  what  that  tribunal  should  ad- 
judge that  it  ought  to  do. 

The  moral  standards  of  the  world,  as  displayed  in  world-poli- 
tics during  the  last  quarter  of  a  century  forbid  it. 


226  JUDICIAL   SETTLEMENT 

The  religious  sentiments  of  the  world,  as  indicated  by  inter- 
national councils,  conferences,  and  congresses,  and  by  associated 
efforts  of  various  kinds,  during  the  same  period,  equally  forbid  it. 
There  have  been,  in  former  ages,  wars  of  religion.  There  will 
never  be  another  between  civilized  peoples. 

Theology  and  Law  are  sister  sciences. 

When  theologians  and  lawyers  make  common  cause  of  any 
social  movement,  it  has  two  strong  impulses  behind  it. 

Is  it  a  significant  fact  that  many  of  the  ecclesiastical  authorities 
among  the  American  people  have  recently  united  in  an  appeal 
to  "the  clergy  of  all  the  Christian  churches  and  the  leaders  of 
all  other  religious  organizations,"  to  observe  the  third  Sunday  of 
December  in  each  year  as  "Peace  Sunday"  for  advocating  the 
substitution  for  war  of  "imperative,  universal  arbitration." 
Among  the  signers  of  this  paper  one  notes  Baptists,  Congrega- 
tionalists,  both  Trinitarian  and  Unitarian,  Methodist  Espico- 
palians,  Presbyterians,  and  Roman  Catholics,  the  latter  repre- 
sented by  Cardinal  Gibbons. 

The  terms  "Imperative  and  universal  arbitration"  are  the 
popular  expression  of  the  thought  which  is  the  raison  d'etre  of 
this  Society.  There  must,  to  attain  the  common  end  in  view,  be 
imperative  and  universal  judgments. 

Such  judgments  must  be  the  voice  of  law,  spoken  by  courts. 

And  here  again  what  has  already  been  accomplished  has  paved 
the  way. 

By  the  convention  adopted  at  the  International  Conference 
held  at  Brussels,  in  1902,  concerning  the  Regulation  and  Produc- 
tion of  Sugar,  an  International  Sugar  Commission  was  consti- 
tuted. It  meets  semi-annually,  and  has  a  permanent  bureau  at 
Brussels.  By  the  terms  of  the  convention  this  international 
bureau  has  the  power  to  inflict  penalties  on  any  of  the  contract- 
ing powers  for  a  violation  of  its  provisions. 

The  Central  American  Court  of  Justice,  also,  organized  in  1908, 
between  five  powers,  is  a  living  court  in  actual  operation,  which 


BALDWIN  227 

has  heard  cases  and  decided  them.  Perhaps  its  functions  might 
have  been  discharged  to  better  effect,  had  they  been  more  nar- 
rowly limited.  Perhaps  there  would  have  been  a  better  prospect 
of  implicit  respect  for  and  prompt  submission  to  its  jurisdiction, 
had  it  been  set  up  between  five  of  the  great  European  powers. 
But  for  what  it  is,  to-day,  the  whole  world  has  reason  to  be  proud 
1  and  grateful.  It  may  serve  to  teach  all  nations  to  go  and  do 
likewise,  or  possibly  to  go  and  do  better. 

The  lesson  may  not  be  readily  learned.  The  court  at  Cartago 
is  still,  no  doubt,  in  the  experimental  stage.  But  is  a  living  exam- 
ple that  something  has  been  done  in  the  direction  of  our  inquiry, 
and  that  more  may  be  done.  It  fortifies  the  position  of  any 
hopeful  student  of  international  law,  who  looks  forward  to  an 
era  of  prevailing  peace. 

Nor  is  it  only  the  student  of  international  law  who  has  faith 
that  its  power  and  its  sanctions  will  be  broadened  so  as  to  take 
on  judicial  forms. 

An  international  court  is  no  passing  idea  of  speculative  theo- 
rists. That  great  military  leader  of  the  last  generation,  General 
Grant,  once  spoke  of  it  in  these  words: 

"Though  I  have  been  trained  as  a  soldier  and  have  partici- 
pated in  many  battles,  there  never  was  a  time  when,  in  my  opin- 
ion, some  way  could  not  have  been  found  of  preventing  the  draw- 
ing of  the  sword.  I  look  forward  to  an  epoch  when  a  court, 
recognized  by  all  nations,  will  settle  international  differences, 
instead  of  keeping  large  standing  armies,  as  they  do  in  Europe." 

The  epoch  thus  contemplated,  thanks  to  the  Hague  Confer- 
ence of  1907,  seems  now  at  hand.  The  times  have  presented 
the  occasion.  It  is  for  the  world  to  grasp  it.  I  believe  it  will. 

THE  PRESIDING  OFFICER  (STRAUS):  The  next  speaker  is 
Hon.  Francis  B.  Loomis,  formerly  Secretary  of  State  ad  interim, 
who  has  had  great  experience  in  international  affairs.  I  have 
great  pleasure  in  presenting  him. 


228  JUDICIAL  SETTLEMENT 

THE  PRICE  OF  PEACE 

FRANCIS    B.    LOOMIS 

One  gratifying  result  of  this  Conference  will  be  to  give  emphasis 
and  distinction  to  the  fact  that  the  leading  minds  of  the  western 
world  at  least  are  in  practical  accord  with  respect  to  the  wisdom 
of  establishing  an  international  court  of  arbitral  justice. 

In  a  letter  addressed  to  one  of  the  founders  of  this  Society  the 
President  of  the  United  States  has  sagaciously  observed  respect- 
ing this  proposed  tribunal,  "There  is  no  other  single  way  in  which 
the  cause  of  peace  and  disarmament  can  be  so  effectively  promoted 
as  by  the  firm  establishment  of  a  permanent  court  of  justice,"  and 
he  significantly  adds,  "If  it  becomes  an  accomplished  fact  there 
will  remain  the  very  important  task  of  so  cultivating  opinion  in 
various  countries  as  to  incline  governments  to  resort  to  the  court 
when  occasion  calls  for  it." 

The  aims  and  true  work  of  this  organization  are  here  set  forth 
in  direct  and  lucid  words.  There  rests  upon  this  Society  and 
upon  those  who  are  in  sympathy  with  it,  and  upon  those  who 
desire  international  peace,  the  weighty  responsibility  of  effec- 
tively arousing  sentiment  throughout  the  world  in  order  to  bring 
to  the  support  of  this  proposed  court  the  authority  and  inspira- 
ation  of  intelligent  public  opinion. 

It  will,  perhaps,  be  found  at  the  close  of  this  Conference  that 
we  have  listened  to  so  many  thoughtful  and  scholarly  papers, 
devoted  to  the  history  and  theorypf  arbitration  and  to  the  develop- 
ment of  the  peace  movement,  that  we  may  safely  put  aside  for 
a  time  discussions  of  an  academic  and  historic  nature,  and  turn 
to  the  solution  of  pressing  practical  questions  which  immediately 
confront  us,  and  with  which  we  will  have  laboriously  to  struggle 
for  many  years. 

In  so  far  as  theories  of  arbitration  are  concerned,  we  have 
not  learned  a  great  deal  save  through  practical  experiences  at  The 
Hague,  since  the  Roman  jurists  set  forth  almost  all  of  the  advan- 


LOOMIS  229 

tages  and  defects  of  arbitral  procedure.  The  chief  superiority 
of  arbitration  over  legal  proceedings  the  Romans  deemed  to  be, 
according  to  Mr.  Hirst's  admirable  book,  "the  exclusion  of 
appeals."  Its  disadvantages  were  excess  of  authority,  the  neg- 
lect of  form  and  the  danger  of  partiality. 

It  is,  in  part,  our  work  this  evening  to  discuss  vital  issues  of 
the  present  and  of  the  immediate  future,  problems  which  should 
appeal  to  all  right-thinking  persons,  problems  of  world-wide  sig- 
nificance, the  happy  solution  of  which  will  tend  to  widen  the  hori- 
zon of  life  and  to  illumine  the  future  with  hope  for  the  better- 
ment of  the  human  race. 

The  very  fact  that  international  conferences,  international  con- 
ventions, meetings,  industrial,  scientific  and  art  expositions,  are 
rapidly  growing  in  number,  shows  that  the  ties  which  spring  from 
mutual  understanding  are  mutiplying  and  waxing  stronger  among 
the  people  of  the  world,  drawing  them  into  community  of  thought 
and  action  upon  questions  which  relate  to  the  fears  and  needs  of 
mankind. 

One  important  effort  of  this  meeting  and  of  similar  gatherings 
for  many  years  will  be  to  impress  the  world  with  the  fact  that  life 
devoted  to  public  service  in  time  of  peace  may  exercise  upon  the 
human  race  an  influence  as  far-reaching  and  compelling  as  any 
result  achieved  by  war.  We  are  rallying  in  the  support  of  an 
idea  that  glorified  the  teachings  of  the  Prince  of  Peace,  and  we 
know  from  history  that  there  is  no  obstacle  which  cannot  be 
conquered  by  a  puissant  sentiment  if  that  sentiment  be  a  sound 
and  noble  one,  drawing  its  strength  from  universal  brotherhood 
and  justice. 

Peace  conferences  which  have  been  held,  the  speeches  which 
have  been  made  and  the  articles  which  have  been  written  within 
the  last  twenty  years  have  been  serviceable  in  disseminating  the 
notion  that  embarrassing  international  complications  can  be  ad- 
justed by  peaceful  methods.  This  truth  must  be  developed  and 
emphasized  until  it  finds  permanent  lodgment  in  the  mind  and 


230  JUDICIAL  SETTLEMENT 

heart  of  every  intelligent  being  on  the  face  of  the  globe;  it  must  be 
carried  forward  in  pursuance  of  a  broad,  definite,  scientifically  con- 
ceived, world-embracing  plan.  The  campaign  for  the  pacification 
of  the  world,  in  order  to  be  successful,  calls  for  the  loftiest  qualities 
of  leadership,  for  the  utmost  devotion  and  patience  on  the  part 
of  the  people  who  engage  in  it  and  who  support  it.  The  unparal- 
leled generosity  of  Andrew  Carnegie  could  not  have  been  more 
timely  and  the  wisdom  of  his  great  gift  will  be  sung  by  genera- 
tions yet  unborn.  We  are  fighting  against  the  traditions  of 
ages  and  against  the  false  sentiment  deeply  rooted  in  every  mind. 
Let  it  not  be  assumed  that  the  world  will  pass  easily,  or  that 
its  progress  will  be  steady,  from  a  state  of  armed  vigilance  and 
costly  preparedness  for  war  to  a  condition  of  preparedness  for 
long  periods  of  peace  and  the  subsequent  diminution  of  standing 
armies  and  expensive  navies. 

By  far  the  greater  part  of  the  world  will  have,  through  infinite 
patience  and  painful  endeavor,  to  be  lifted  up  to  a  sound  and 
enduring  conception  of  the  feasibility  of  international  peace. 
Many  of  the  practices  and  daily  teachings  of  centuries  will  have  to 
be  unlearned  and  forgotten.  The  task  which  confronts  you  is  a 
solemn  and  prodigious  one,  and  as  the  peace  idea  grows  and  fixes 
itself  with  insistence  and  clinging  strength  upon  the  mind  and 
conscience  of  coming  generations,  fresh  ideas  will  enter  into  the 
the  thought  and  literature  of  the  people;  to  a  considerable  extent 
a  new  literature  will  have  to  be  written.  The  triumphs  of  peace 
will  have  to  be  exalted  in  place  of  those  of  war.  The  children  of 
the  future  must  have  set  before  their  eyes  and  put  into  their 
hands  new  symbols  to  replace  the  symbols  of  war  which  typify 
the  glory  of  conquest  and  the  glamour  of  battle.  If  we  are  to 
cause  the  world  to  abhor  war  and  to  lead  the  peoples  of  the  earth 
into  ways  of  peace  it  is  evident  that  there  is  one  simple  and  funda- 
mental work  which  must  be  done,  and  done  properly.  Ade- 
quate and  substantial  preparation  must  be  made  for  "the  thou- 
sand years  of  peace."  Everlasting  foundations  must  be  laid 


LOOMIS  231 

and  the  foundation  of  the  whole  structure  which  we  would  rear 
upward  is  the  correct  education  of  the  children  of  the  future. 
This  is  the  price  of  peace.  It  means  earnest,  painstaking  effort 
which  may  have  to  extend  over  a  long  period  of  years.  Some- 
thing must  be  substituted  for  the  tales  and  songs  of  martial 
conquest.  The  literature  of  childhood  must  be  revised;  a  new, 
and  just  ideal  of  service  to  one's  fellow  man  must  be  held  allur- 
ingly, yet  firmly,  before  the  eyes  of  the  youth  of  the  nation. 
That  youth  must  be  taught  to  believe  that  there  are  better  ways 
of  serving  one's  country,  better  ways  of  demonstrating  patriotism, 
than  by  fighting  in  unnecessary  wars.  It  must  come  to  be  the 
accepted  belief  and  sentiment  that  the  professional  soldier's  life 
is  not  necessarily  more  dazzling  or  important  than  that  of  the 
policeman.  The  profession  of  arms  will  have  to  cease  to  be  a 
career  except  for  the  very  few  specialists  who  may  be  employed 
in  the  public  international  police  service,  as  it  were.  Spheres 
of  activity  now  unknown  and  unopened  must  be  found  for  the 
children  of  the  future  to  take  the  place  of  military  life.  The 
world  must  come  sincerely  to  believe  that  there  is  as  much 
helpful  inspiration  in  a  noble  life  as  in  an  heroic  death.  As  Pro- 
fessor James  has  observed,  we  must  find  "a  moral  equivalent  for 
war."  The  young  man  of  sound  body  and  mind  to-day  cannot 
be  deprived  of  the  notions  of  patriotism  and  glory  which  duster 
about  military  achievements,  the  renown  of  victories,  and  the 
self-sacrifice  involved  in  fighting  for  one's  country  unless  he  can 
be  given  an  outlet  for  his  activities  and  imagination  of  equal 
authority  and  value. 

I,  for  one,  would  not  destroy  the  sentiment  of  patriotism  in 
any  heart,  but  I  would  find  for  it,  if  possible,  a  nobler  and  more 
useful  expression  than  is  offered  by  warfare.  A  man  ought  to  be 
willing  to  die  for  his  country  if  necessary,  but  it  is  very  much 
better  for  the  country  and  himself  that  he  should  live  for  it  and 
contribute  by  a  life  of  usefulness  to  its  prosperity  and  well-being. 
There  can  be  no  widespread  and  persistent  progress  toward  the 


232  JUDICIAL   SETTLEMENT 

goal  of  enduring  international  peace  until  the  educational  system 
of  the  civilized  world  in  so  far  as  it  bears  upon  this  subject,  is 
very  generally  reorganized  and  rearranged. 

The  logical  starting  point,  as  we  begin  to  strive  to  bring  about 
the  new  order,  is  the  education  of  the  child.  The  sound  and 
eminent  thinkers  at  the  top  of  the  social  structure  have  been 
convinced  of  the  wisdom  and  necessity  of  these  things  which  we 
so  earnestly  desire,  and  they  are  bearing  forward  the  torch  of 
truth,  but  oftentimes  they  hold  it  too  high  and  are  too  far  in 
advance  of  the  multitude.  Our  task  is,  perhaps,  the  more 
difficult  one,  namely,  to  achieve  reform  from  the  bottom  up. 

The  first  important  accessions  to  this  movement  will  probably 
come  as  a  result  of  economic  pressure  rather  than  from  moral 
conviction.  A  largely  increasing  number  of  people  throughout 
the  world  are  beginning  to  understand  that  the  crushing  cost  of 
military  establishments  falls  upon  them,  and  they  are  the  princi- 
pal victims  of  war  and  the  costly  preparedness  for  war.  The  tax 
gatherer  is  going  to  be  a  practical  and  potent  agent  in  the  cause 
of  peace.  As  education  spreads,  people  will  understand  that  the 
financial  burdens  of  the  war  system  strike  at  the  very  root  of 
public  prosperity. 

It  is  estimated  that  the  total  annual  cost  of  maintaining  the 
armaments  of  the  world,  should  they  continue  to  increase  in  the 
present  ratio,  will,  in  the  year  1920,  amount  to  400,000,000 
pounds  sterling.  According  to  a  recent  report  by  a  Massachusetts 
committee,  charged  with  the  investigation  of  the  cost  of  living 
in  the  period  between  1879  and  1909,  we  spent  in  this  country  for 
military  purposes  $12,210,499,778,  or  71  percent  of  the  nation's 
total  income  during  a  period  of  thirty  years.  That  outlay  was 
on  destructive  agencies  which  served  no  considerable  economic 
purpose.  The  money  so  used  was  taken  from  the  pockets  of 
the  people.  The  two  thousand  million  dollars  to  be  expended 
for  war  purposes  in  1920  would  dot  the  dark  places  of  earth  with 
white  temples  of  learning,  dedicated  to  the  propaganda  of  peace. 


LOOMIS  233 

Labor  unions  often  demonstrate  hostility  to  standing  armies 
and  the  activity  of  these  organizations  is  making  itself  felt  in 
some  of  the  parliaments  of  the  world  when  military  budgets  are 
under  discussion.  Some  real  good  may  come  from  this  source, 
but  I  think  it  an  unsound  and  unstable  source,  for  labor  move- 
ments are  too  often  directed  against  authority,  against  whole- 
some restraint,  and  against  the  power  to  enforce  the  law  of  the 
land.  Certain  labor  organizations  and  some  great  industrial 
centers  throughout  the  world  are  opposed  to  armies,  not  on  broad 
and  humanitarian  grounds,  but  because  they  believe  that  well 
equipped  and  disciplined  troops  may  stand  between  them  and  a 
resort  to  force  and  violence  hi  contemplated  strikes. 

If  we  cannot,  at  the  present  time,  conduct  our  domestic  affairs 
in  this  country  without  resort  to  force, — and  a  strike  is  nothing 
but  a  resort  to  force, — how  can  we  expect  speedily  to  do  way 
with  bitter  conflicts  between  peoples  of  different  races  and  dif- 
ferent interests?  In  theory,  at  least,  the  strike  is  based  on  force 
very  much  as  war  is.  Strikes  lead  to  the  destruction  of  property 
and  life  and  the  infliction  of  vast  money  losses  upon  all  directly 
concerned  in  the  controversy,  but  more  particularly  upon  the 
helpless  and  unoffending  public. 

I  refer  to  this  matter  by  way  of  suggestion  in  order  to  indicate 
how  long  and  difficult  the  road  and  how  replete  with  vexatious 
obstacles  the  pathway  which  must  lead  through  the  universal 
education  of  the  heart  and  mind  to  universal  peace,  personal, 
industrial  and  international. 

When  we  consider  the  weakness  of  human  nature  and  the 
defects  of  human  character  that  have  been  wrought  through  ages 
of  trouble  and  strife,  oppression  and  ignorance,  we  can  grasp  in 
some  small  way  the  magnitude  of  the  stupendous  work  of  educa- 
tion which  confronts  this  Society  and  organizations  akin  to  it. 

It  seems  that  the  human  race  in  some  degree  will  have  to  be 
transformed  before  we  can  be  prepared  for  lasting  peace.  The 
majestic  task  which  you  have  set  yourselves  involves  the  up- 


$34  JUDICIAL   SETTLEMENT 

building  of  new  ideals  of  patriotism,  the  selection  of  new  guides 
to  right  living,  the  creation  of  a  new  personal  and  a  new  national 
conscience  which  will  enable  the  citizen  of  the  future  conscien- 
tiously to  believe  that  the  most  normal  life,  both  for  nations  and 
for  men,  is  one  of  domestic  tranquility  and  of  international  con- 
cord. The  reforming  work  for  the  establishment  of  that  serene 
and  radiant  future  of  peace  and  good  will  which  you  desire  must 
begin  with  the  regeneration  of  the  indidivual,  for  the  aspiring 
soul  of  a  nation  can  rise  no  higher  than  its  source,  and  its  source 
is  in  the  wayward  hearts  of  the  people. 

THE  PRESIDING  OFFICER  (STRAUS):  I  now  have  the  pleas- 
ure of  introducing,  as  the  last  speaker,  Dr.  David  Starr  Jordan, 
President  of  Leland  Stanford  University,  who  has  written  several 
very  important  books  on  various  phases  of  this  great  subject. 

THE  WASTE  OF  WAR 

DAVID   STARR  JORDAN 

The  aim  of  our  Society  is  to  do  its  part  "  to  keep  unreasoning 
anger  out  of  the  councils  of  the  world."  The  absence  of  unrea- 
soning anger  between  nations  is  the  beginning  of  peace.  But  our 
ideals  of  peace  are  not  met  by  "bankruptcy  armed  to  the  teeth," 
the  state  of  Europe  to-day,  a  condition  which,  as  Gambetta  once 
said,  finds  its  final  climax  in  "a  beggar  crouching  by  a  barrack 
door." 

International  peace  means  mutual  respect  and  mutual  trust,  a 
condition  in  which  the  boundary  line  between  states  is  not  a  line 
of  suspicsion  and  hate,  but,  like  the  boundaries  of  provinces,  a 
convenience  in  judicial  and  administrative  adjustments.  Such 
a  boundary  as  this  is  found  in  the  five-thousand-mile  line  which 
separates  Canada  from  the  United  States,  an  undefended  border 
which  for  nearly  a  hundred  years  has  not  known  a  fortress  nor 


JOfcDAN 

a  warship  nor  a  gun.  There  is  nothing  of  which  the  two  great 
North  American  nations  have  a  greater  right  to  be  proud  than 
this  boundary  of  trust  and  confidence. 

The  end  of  our  efforts  is  found  in  the  conception  of  peace 
through  law.  A  natural  law  is  the  expression  of  the  way  in  which 
things  normally  come  about.  Human  law  is  the  expression  of 
the  best  relations  among  men.  In  war,  the  conceptions  of  right 
and  duty  disappear.  In  arms,  the  laws  are  silent.  Worse  ways 
of  doing  things  take  the  place  of  better,  to  the  detriment  of 
society  and  of  the  individual  man. 

The  whole  movement  of  civilization  has  been  from  strife  toward 
order.  In  barbarism  every  man's  hand  is  against  every  other. 
The  life  of  every  man  and  woman  is  a  tragedy.  As  man  has  risen 
cooperation  has  taken  the  place  of  compulsion.  Men  have 
brought  peace  to  their  families  and  then*  neighborhoods  by  work- 
ing together  to  exclude  war.  They  have  learned  more  and 
more  to  leave  their  differences  to  the  decision  of  others,  either 
through  arbitral  settlement  or  judicial  decision.  The  one  brings 
about  a  condition  of  mutual  tolerance;  the  other  strives  towards 
ideal  justice.  And  in  the  world  of  to-day  both  methods  find 
their  center  in  the  councils  and  tribunals  at  The  Hague. 

In  such  fashion,  step  by  step,  men  have  passed  from  tribal  wars, 
municipal  wars,  struggles  of  robber  barons,  and  of  rival  dynasties, 
marauding  expeditions,  holy  wars  and  wars  unholy,  to  relative 
peace  within  the  borders  of  the  nation.  The  only  place  where 
killing  on  a  large  scale  is  legalized  is  on  the  line  where  great 
nations  meet.  Along  these  borders  to-day  the  most  crushing 
burdens  of  war-machinery  the  world  has  ever  imagined  are 
steadily  piling  up.  All  this  is  avowedly  in  the  interest  of  final 
peace,  "the  peace  by  preponderance,"  to  use  Lord  Roseberry's 
descriptive  phrase,  not  that  peace  which  comes  of  mutual  confi- 
dence and  mutual  respect. 

The  chief  purpose  of  national  existence  is  to  ensure  local  peace. 
Its  extension  defines  a  limit  in  which  peace  shall  exist.  This  does 


236  JUDICIAL  SETTLEMENT 

not  inhibit  riots,  violence  or  civil  wars,  because  no  one  can  guar- 
antee that  a  nation  shall  be  just  within  its  own  jurisdiction,  nor 
that  a  people  shall  be  docile  and  law-abiding,  even  when  fairly 
treated  by  those  in  authority.  But  the  tendencies  of  national 
development  make  for  national  peace.  The  growth  of  popular 
government  makes  everywhere  for  better  understanding  among 
men,  and  groups  of  men  who  know  each  other  recognize  their 
common  humanity  and  common  interests  as  far  outweighing 
their  desire  for  fight. 

Along  the  international  borders,  or  rather  along  the  boundaries 
of  races,  ill-feeling  and  violence  are  most  likely  to  appear.  Across 
these  same  borders  a  thousand  emissaries  for  good  are  also 
passing,  from  day  to  day.  The  missionary  has  been  a  powerful 
agency  for  peace.  So  likewise  is  the  commercial  traveler,  the 
board  of  trade,  the  international  commission,  the  world  congress, 
and  all  other  agencies  for  bringing  men  together  on  the  basis  of 
common  interest  and  common  trust.  The  world  over,  men 
engaged  in  similar  work,  though  in  different  nations,  have  more 
in  common  than  the  men  of  the  different  groups  within  a  single 
nation. 

The  unification  of  international  life  is  a  guarantee,  obvious  to 
all  save  the  politicians,  that  international  war  among  civilized 
nations  has  already  come  to  an  end.  The  old  impulses  for  inter- 
national war  have  passed  away.  The  dream  of  a  unified  church 
and  a  unified  state,  including  all  Christendom,  and  both  held  to- 
gether by  force,  has  passed  away.  The  Holy  Roman  Empire  ex- 
ists only  as  a  memory.  The  marauding  nation,  which  lives  on 
the  spoils  of  its  neighbors,  has  not  been  possible  for  a  hundred 
years.  No  war  can  bring  financial,  social  or  political  gain  to  any 
nation,  as  the  world  goes  to-day.  This  idea,  dominant  so  long, 
has  been  lately  characterized  as  "the  great  illusion."  Victory  or 
defeat  alike  bring  disorder,  confusion,  debt  and  bankruptcy.  An 
armed  peace,  by  which  nations  are  supposed  to  be  frightened  into 
acquiescence,  is  in  the  long  run  likely  to  be  equally  ruinous. 


JORDAN  237 

Though  war  has  ceased,  its  cost  still  goes  on.  Since  Jean  de  Bloch 
sounded  his  first  majestic  warning  as  to  the  financial  ruin  in- 
volved in  war,  the  war  debts  of  the  nations  have  mounted  higher 
and  higher,  and  the  yearly  budget  for  war  machinery  has  doub- 
led and  doubled,  and  is  still  rising  at  an  accelerated  pace.  To 
borrow  money  implies  money  lenders,  and  an  adequate  group  of 
such  could  not  be  developed  save  on  an  international  scale  even 
as  is  now  actually  the  case.  A  gigantic  national  debt  involves  an 
invisible  empire  which  shall  direct  and  control  credit.  The  foun- 
dation of  such  an  empire  was  laid  less  than  a  century  and  a  half 
since  by  the  pawnbroker  Mayer  Amschel  called  Bauer,  of  Frank- 
fort-on-the-Main,  doing  business  under  the  sign  of  the  Red 
Shield.  He  was  the  financial  "uncle"  of  the  Landgrave  of  Hesse- 
Cassel,  and  the  honorarium  paid  him  for  furnishing  the  Hessian 
troops  in  the  war  of  the  Revolution  made  him  a  factor  in  large 
affairs.  As  "  uncle"  to  the  king  of  Denmark,  his  importance  was 
enhanced  and  the  ingenuity  of  his  gifted  son,  Nathan  Rothschild, 
at  Waterloo  and  at  London  forced  the  downfall  of  the  house  of 
Bonaparte  to  ensure  the  rise  of  the  house  of  Rothschild.  In 
every  subsequent  financial  transaction  of  every  nation  of  Europe, 
the  princes  of  the  Unseen  Empire  have  taken  the  leading  part. 
From  the  battle  of  Waterloo  until  his  death  Nathan  Rothschild 
was  the  actual  ruler  of  Europe. 

"This  little  man,"  says  Bismarck  of  his  agent  Bleichroder, 
"this  little  man  has  counted  coins  since  the  birth  of  Christ;" 
and  as  an  agent  of  the  Unseen  Empire,  Bleichroder  told  to  a  franc 
what  could  be  extorted  from  France.  A  loan  of  this  same  sum 
from  the  Rothschilds  was  for  the  time  being  France's  salvation. 
The  crown  of  the  last  Napoleon  was  bought  and  held  in  its  place 
by  the  gold  of  the  Unseen  Empire,  while  the  struggle  in  which  this 
same  crown  fell  was  financed  on  both  sides  alike  by  the  same  ma- 
jestic masters  of  finance.  These  money  lenders  on  both  sides 
alike  belonged  to  the  group  that  knows  no  nationality  and  never 
acts  on  cross  purposes.  The  drastic  exactions  of  Germany  were 


238  JUDICIAL   SETTLEMENT 

fixed  by  the  Invisible  Empire.  By  the  same  men,  these  vast 
sums  were  advanced,  the  loan  being  finally  repaid  in  large  part 
by  the  patience  and  thrift  of  the  people  of  France.  And  the 
debt  once  paid,  the  sum  was  borrowed  again,  in  part  for  railway 
extension,  but  for  the  most  part  the  loan  went  into  the  bottom- 
less pit  of  militarism,  and  the  debt  of  France  to-day  overtops 
that  of  all  other  nations  of  the  world.  The  bonds  which  guarantee 
these  loans  and  those  of  other  nations  are  controlled  by  the 
members  of  the  Unseen  Empire,  whose  silent  nod  to-day  deter- 
mines all  incidents  of  war  or  peace.  To  control,  it  is  not  neces- 
sary to  own.  We  find  the  difference  in  our  American  problems 
of  railway  management.  As  one  may  control  a  railway  without 
owning  it,  so  may  one  control  likewise  a  nation.  It  is  necessary 
only  to  control  its  debts.  The  debt  of  Europe,  mostly  for  war 
and  war  implements  and  mostly  contracted  in  the  last  sixty 
years,  is  controlled  by  "das  Consortium"  of  bankers,  by  the 
sixteen  to  eighteen  families,  the  Rothschilds  at  their  head,  who 
constitute  the  Unseen  Empire  of  Finance. 

A  hundred  years  ago  there  was  published  in  France  a  cartoon 
of  finance.  A  farmer  plowed  in  the  field,  on  his  back  a  frilled 
marquis  of  the  old  regime  tapping  his  dainty  snuff  box.  Not 
many  years  ago  appeared  another  cartoon.  The  farmer  still 
plowed  in  the  field,  on  his  back  a  soldier,  armed  to  the  teeth,  and 
on  his  back  in  turn  a  bondholder.  It  would  have  been  truer  had 
there  been  seventeen  of  these  bondholders. 

The  war  debt  of  France  to-day  is  six  thousand  millions  of 
dollars.  The  interest  paid  each  year  is  two  hundred  forty  millions 
of  dollars.  The  war  debt  of  Europe  approaches  twenty-six  thou- 
sand millions  of  dollars.  The  yearly  interest  is  over  a  thousand 
millions  of  dollars.  The  debt  will  never  be  paid,  can  never  be 
paid.  Two  of  the  great  instruments  in  national  slavery  are  the 
deferred  payment  and  the  indirect  tax.  "The  system  of  laying 
burdens  on  posterity,"  says  Goldwin  Smith,  "removes  the  last 
check  on  war."  By  the  means  of  indirect  taxation,  the  people 


JORDAN  239 

never  know  what  they  are  paying.  By  means  of  war  debt,  the 
cost  is  shifted  to  generations  still  unborn. 

The  interest  money  exacted  and  the  millions  spent  from  year  to 
year  on  armament  mean  the  final  collapse  of  European  industry 
unless  the  process  is  somehow  checked.  The  interest  is  beyond 
the  capacity  of  the  people.  The  world's  annual  production  of 
gold  is  little  more  than  one-third  the  interest  money  due  in 
Europe.  The  world's  entire  stock  of  gold  is  little  more  than 
one-fourth  the  war  debt  of  Europe.  The  unpaid  balances  must 
be  added  to  the  principal,  which  mounts  higher  with  its  at- 
tendant interest.  Most  payments  are  made  hi  credits,  of  course, 
and  credits  must  be  added  to  the  principal.  It  is  said  of  the 
great  house  of  Rothschild,  the  centre  of  this  empire,  in  every 
nation  of  Europe,  that  it  has  two  great  maxims,  one  to  deal 
fairly,  the  other  to  work  together,  each  branch  in  each  capital 
cooperating  with  all  the  others.  The  first  is  well;  the  credit  of 
the  world  could  not  be  maintained  without  it.  The  second  means 
that  the  Unseen  Empire  knows  no  distinction  of  nation.  Ger- 
man, Russian,  British,  or  French,  all  need  and  all  debt  is  alike  to 
them.  Whatever  their  seats  of  power,  the  masters  of  Europe 
work  together.  They  know  no  cross  purposes.  Whatever  loans 
they  may  make,  in  their  hands  is  the  peace  of  Europe;  and 
they  will  see  that  Europe  keeps  the  peace.  A  great  European 
war  would  mean  only  the  destruction  of  credit,  and  as  the  credit 
of  the  world  is  their  stock  in  trade  the  emperors  of  finance  will 
see  to  it  that  no  petty  king  or  ministry  shall  imperil  their  holdings. 

But  this  condition  is  not  one  of  real  peace.  The  great  ogre 
war,  says  Bastiat,  "devours  as  much  when  he  is  asleep  as  when  he 
is  awake."  The  interest  charges  of  France  and  England  represent 
approximately  the  cost  of  all  rentals  of  houses  in  those  countries. 
Without  war  taxes,  each  man  could  have  his  house  free,  were  the 
money  to  be  used  in  such  a  fashion. 

The  annual  expenditure  of  the  world  on  armies  and  navies  in 
these  times  of  peace  passes  $4,000,000,000  every  year.  This  is 


240  JUDICIAL  SETTLEMENT 

extorted  by  taxation,  a  present  load  on  industry  and  commerce 
over  and  above  all  demands  made  by  the  war  debt  which  no  man 
and  no  nation  ever  intends  to  pay. 

The  deferred  war  debt,  the  malignant  device  of  Pitt  a  little 
more  than  a  century  ago,  has  now  become  the  overshadowing 
danger  of  national  life.  It  is  not  clear  where  its  operations  may 
end.  No  check  remains  to  its  operations  to-day,  nor  any  pros- 
pect of  a  check  in  the  near  future.  Democracy  does  not  arrest 
it.  A  nation  can  borrow  when  a  king  cannot.  The  sordid  deals 
and  extortions  of  the  kings  of  the  eighteenth  century  are  but 
petty  transactions  compared  with  those  of  the  free  nations  who 
put  their  money  into  ships  of  war.  So  long'  as  Great  Britain, 
by  virtue  of  her  primacy  in  commerce  and  civilization,  is  entitled 
to  twice, — with  ten  per  cent  added, — the  number  of  warships 
possessed  by  any  other  nation,  and  so  long  as  Germany  is  more 
populous  than  England  and  more  effective  industrially,  while  yet 
possessed  with  the  mediaeval  spirit  of  military  rivalry,  there 
seems  no  way  out.  France  unwillingly  and  the  United  States 
with  joyous  recklessness  are  swept  on  the  same  path.  All  seem 
possessed  with  the  belief,  once  true,  that  all  peoples  are  watching 
to  pounce  on  the  nation  which  leaves  itself  unarmed.  In  this 
feeling,  all  consideration  of  the  growth  of  civilization,  common 
interest  and  common  decency,  is  thrown  to  the  wind.  The  Great 
Illusion  remains  that  such  invasions  would  be  profitable,  that 
they  would  be  even  possible.  Neither  profitable  nor  possible 
could  they  be  at  the  present  time;  nor  can  it  be  long  possible  for 
debt  and  armament  alike  to  increase  as  they  are  now  increasing. 

The  entire  wealth  of  six  leading  countries  of  Europe  is  estimated 
at  $240,000,000,000,  a  little  more  than  ten  times  the  war  debt  of 
these  same  countries.  It  is  an  interesting  question  in  mathe- 
matics to  know  how  long  the  wealth  may  outrun  the  debts.  For 
the  wealth  rises  by  arithmetical  progression,  the  debts  by  geo- 
metrical progression,  the  rise  of  compound  interest.  It  is  not 
strange  that  the  average  wealth  of  the  citizen  is  greater  in  the 


JORDAN  241 

small  countries  of  Europe  than  in  the  large  ones;  in  Switzerland 
and  Holland  than  in  Germany;  that  the  commerce  per  capita  is 
greater  in  these  small  ones,  and  that  the  bonds  of  the  smaller 
nations  sell  on  a  higher  basis  than  those  of  Great  Britain  and 
of  Germany.  It  is  not  strange  that  Booker  Washington  in  a  late 
visit  to  Europe  should  declare  that  in  certain  regions  of  Southern 
Europe  the  common  folk  had  less  property,  less  opportunity, 
less  hope,  than  is  the  lot  of  the  negroes  of  Alabama.  It  is  by  the 
condition  of  the  common  folk  that  the  prosperity  of  all  nations 
should  be  measured.  It  is  not  the  status  of  the  banker,  the  trader, 
the  landholder,  the  professional  man,  the  university,  the  theatre, 
the  art  gallery,  which  determines  the  place  of  the  nation.  It  is 
the  chance  of  the  common  man  to  make  the  most  of  himself.  We 
may  not  judge  England  by  the  neighborhood  of  St.  James  nor 
France  by  the  Place  de  I'Ope'ra,  nor  Russia  by  the  fair  streets  of 
her  capital.  We  must  value  the  nations  by  the  kind  of  life  lived 
by  the  generations  that  come  and  go  unnoticed  in  the  pages  of 
romantic  history.  And  before  this  court  of  judgment  the  war 
debt  is  a  monstrous  wrong,  a  crime  committed  by  the  last  genera- 
tions against  the  rights  of  those  that  follow. 

"In  war  time,"  says  a  writer  in  the  Boston  Transcript,  "always 
the  contractors,  the  money-lenders,  the  grafters,  the  whole  cata- 
logue of  parasites  preying  on  the  life-blood  of  the  community,  are 
winners,  no  matter  which  of  the  combatants  may  lose,  even  when 
the  loser  is  their  own  country.  There  is  the  same  opportunity 
at  the  other  extreme  of  the  social  scale  in  the  Invisible  Empire,  as 
that  seized  on  by  the  criminal  classes  and  the  baser  elements 
of  mankind  in  a  city  given  over  for  the  hour  to  rioting.  The  loot- 
ing mob  suddenly  makes  its  appearance  and  takes  full  advantage 
of  the  situation,  reaping  the  same  sort  of  greedy  harvest  as  the 
dealers  in  foodstuffs  and  arms  and  ships,  shoes  and  clothing  and 
government  bonds  do  in  their  field  of  operations,  when  for  a  time 
the  wonted  order  of  civilization  is  broken  between  nations." 

In  similar  vein,  Burke  speaks  of  certain  traders  in  war  time  as 


242  JUDICIAL   SETTLEMENT 

"scenting  with  delight  the  cadaverous  odor  of  lucre."  When 
nations  struggle  for  life  or  death,  this  is  the  pirate's  opportunity. 

One  of  the  momentous  periods  in  the  political  history  of  the 
world  is  that  of  the  coming  together  near  the  beginning  of  the 
nineteenth  century  of  these  various  conditions:  constitutional 
government,  mechanical  invention  applied  to  war  and  enor- 
mously increasing  its  expense  and  destructiveness,  the  change  of 
war  itself  from  disputes  between  politicians  to  a  life  and  death 
struggle  between  nations,  the  growth  of  a  cooperating  banking 
system  with  ramifications  wide  and  strong  enough  to  take  whole 
nations  in  pawn  in  exchange  for  ready  money,  and,  lastly,  states- 
men ready  to  pledge  the  future  to  any  extent  for  the  sake  of  tem- 
porary advantage. 

Constitutional  government  gives  stability  enough  to  make  de- 
ferred payments  on  a  vast  scale  possible.  The  old  kings  had  to 
pay  on  the  spot  and  made  their  way  by  extortion,  graft,  sale 
of  favors,  debasement  of  coinage,  by  fawning  and  by  violence. 
A  nation  could  borrow  money  it  was  never  expected  to  pay,  if  it 
could  keep  up  the  charges  of  interest.  Hence  the  debt  of  France 
to-day  is  nearly  a  dozen  times  as  great  as  Louis  the  Magnificent 
was  ever  able  to  make  it.  Even  the  interest  charges  alone  to-day 
equal  the  highwater  mark  of  the  royal  loans  of  the  eighteenth 
century. 

Mechanical  invention  has  supplanted  the  old  wooden  frigate 
with  the  Dreadnought  and  the  Superdreadnought,  gigantic  float- 
ing forts,  each  one  costing  an  emperor's  ransom,  and  each  one 
sending  all  previous  vessels  as  worthless  to  the  junkheap.  Twelve 
millions  of  dollars  is  the  standard  cost,  I  am  told,  of  one  of  these 
vessels,  and  a  few  more  years  will  raise  this  to  $25,000,000  unless 
indeed  by  that  tune  such  vessels  can  be  had  for  their  worth  in 
old  iron.  Equal  progress  has  been  made  in  the  art  of  destroying 
ships.  Shore  guns,  mines  and  torpedoes  now  forbid  the  entrance 
of  any  battleship  into  any  hostile  port,  and  already  their  existence 
is  threatened  from  the  air.  Guns,  powder,  ball,  all  have  moved 


JORDAN  243 

onward  since  the  days  of  Napoleon  in  unfortunate  parallelism 
with  the  applications  of  science  in  all  other  directions — a  science 
which  has  grown  through  peace,  for  all  science  was  impossible  in 
the  days  when  war  was  the  chief  business  of  all  virile  men. 

Lastly,  the  statesmen  willing  to  borrow,  on  the  plea  of  Pitt 
that  the  nation  belongs  to  the  living  genervation,  on  which  pos- 
terity has  no  claim,  have  abounded  in  all  times  and  under  all 
forms  of  government.  For  one  Turgot,  there  are  a  hundred  Pitts 
and  John  Laws  and  Calonnes.  And  because  this  is  so,  the  out- 
look is  very  dark  to-day  for  debt-crushed  Europe.  Because  this 
is  so,  even  free  America  and  free  Canada  stand  to-day  at  the  part- 
ing of  the  ways,  and  the  easiest  way  is  that  leading  towards  debt 
and  waste.  It  is  easier  for  a  nation  as  for  a  man  to  follow  the 
lead  of  its  associates  than  to  strike  out  for  itself  toward  thrift, 
honesty  and  prosperity. 

But  greater  than  the  waste  of  the  "earnings  of  poor  men's 
lives,"  is  the  waste  of  life  itself.  It  is  a  fundamental  fact  of  biol- 
ogy that  the  laws  in  heredity  which  apply  to  man  are  those  which 
govern  the  lower  animals  as  well.  "Like  the  seed  is  the  harvest" 
—this  is  the  fundamental  law.  The  men  you  breed  from  deter- 
mine the  future.  Heredity  runs  level.  No  race  of  men  nor  ani- 
mals has  improved  save  through  selection  of  the  best  for  parent 
age.  None  has  fallen  save  through  the  choice  of  inferior  stock 
for  parentage.  Whatever  influence  may  cause  the  destruction  of 
the  strong,  the  brave,  the  courageous,  the  enterprising,  will  en- 
sure a  generation  which  shall  show  these  qualities  in  lower  degree. 
Rome  fell  because  the  old  Roman  stock  was  for  the  most  part 
banished  or  exterminated.  There  was  no  other  cause.  The 
Romans  were  gone  and  that  was  the  end  of  it;  while  the  sons  of 
slaves,  camp-followers,  scullions  and  pedlars  filled*  the  Eternal 
City.  The  Republic  fell  when  "Vir  gave  place  to  Homo," 
real  men  in  Rome  to  mere  beings.  The  Empire  fell  when  the  bar- 
barians filled  the  unoccupied  city,  unoccupied  so  far  as  the  men  of 
the  old  Roman  type  was  concerned. 


244  JUDICIAL   SETTLEMENT 

The  latest  historian  of  The  Downfall  of  the  Ancient  World, 
Dr.  Otto  Seeck,  of  Munster,  tells  us  how  after  the  wars  of  Marius 
and  Sulla,  "only  cowards  remained,  and  from  their  brood  came 
forward  the  new  generations."  We  ask  no  other  reason  for 
the  disappearance  of  Greece.  Greek  art,  Greek  philosophy, 
Greek  literature,  the  perfection  of  form  in  thought,  in  action, 
in  speech — all  these  were  impossible  save  to  men  of  Greek  blood ; 
and  when  these  had  fallen  in  suicidal  war,  there  was  no  longer  the 
heredity  which  could  replace  them. 

Some  twenty  years  ago,  I  visited  the  city  of  Novara  in  northern 
Italy.  South  of  the  town  was  a  wheatfield  where  the  Sardinian 
army  was  once  encamped  and  from  which  they  were  driven  by 
the  Austrians.  From  the  field  the  Sardinians  fled, — you  can 
still  trace  their  flight  by  the  marks  left  by  bullet  and  by  cannon 
ball  on  the  houses, — down  the  long  street  to  the  city  of  Novara. 
Here  the  king,  Charles  Albert,  sat  in  his  palace,  and  when  the 
fleeing  army  came  by  he  gave  up  his  throne  to  his  son,  Victor 
Emanuel.  History  tells  the  rest,  but  the  significance  of  such 
events  lies  not  in  the  fate  of  kings,  nor  does  it  lie  in  the  fate  of 
the  men,  nor  yet  in  the  waste  of  their  lives,  nor  even  in  the  sor- 
rows of  those  who  loved  them.  It  is  found  in  the  effect  upon  the 
race. 

On  the  battlefield  of  Novara  the  farmers  had  plowed  up  the 
skulls  of  the  slam,  had  stacked  them  up  until  they  formed  a  pyra- 
mid some  fifteen  feet  high.  Over  these,  twenty  years  ago,  was  a 
little  canopy  which  kept  off  the  rain.  Now  they  have  been  given 
a  more  secure  shelter  within  a  memorial  pyramid,  a  little  farther 
down  the  road. 

But  however  preserved,  these  were  the  skulls  of  young  men 
between  eighteen  and  thirty-five  years  of  age,  young  men  from 
the  farms  and  shops  and  schools,  some  from  France,  some  from 
Italy,  the  rest  from  Austria.  And  as  these  were,  according  to 
custom,  the  best  among  the  peasantry,  so  in  their  homes  since 
then  the  generations  have  arisen  from  inferior  stock.  By  the 


JORDAN  245 

character  and  fate  of  the  common  man  and  the  opportunity 
offered  to  him,  the  nations  must  be  judged.  On  him  the  fate  of 
the  nation  depends,  and  the  waste  of  Novara  is  a  waste  which  is 
enduring.  It  is  like  cutting  the  roots  of  a  tree  while  its  flowers 
and  fruitage  continue.  The  roots  of  to-day  determine  the  fruitage 
of  the  future.  Those  nations  who  have  lost  their  young  men  in 
war  have  hi  so  far  checked  their  own  development. 

Not  one  Novara  could  work  ruin  to  any  nation.  But  no  No- 
vara ever  stood  alone.  Down  the  road  in  Lombardy  is  the  little 
town  of  Magenta.  You  know  the  color  we  call  Magenta,  the  hue 
of  the  blood  that  flowed  out  under  the  locust  trees  in  the  park, 
the  blood  that  stained  the  river  below  the  hard-fought  bridge. 
Here  the  French  came  up  from  the  west.  In  due  tune  the  Aus- 
trians  fled  from  the  bridge  to  the  park,  from  the  park  down 
the  long  street  toward  Milan,  and  at  last  out  of  all  Lombardy. 
Here  in  a  cloister  of  the  old  church  of  Magenta  you  will  find 
the  pile  of  skulls — skulls  of  brave  men.  You  can  know  it  by 
the  bullet  holes  which  the  spiders  for  half  a  century  have  vainly 
tried  to  heal. 

You  will  go  down  the  plains  of  Lombardy,  west  to  Desenzano, 
on  the  Lake  of  Garda.  Here  is  ;the  field  of  Solf erino,  bloodiest 
of  all,  where  thirty  or  forty  thousand  killed  and  wounded  men  were 
left  by  the  cowardly  armies  for  three  days  on  the  field  untended 
save  by  flies  and  mosquitoes.  It  was  here  that  Henri  Dunant  of 
Geneva,  a  tourist  in  Verona,  organized  the  work  of  relief  which 
grew  at  last  into  the  Red  Cross  Association.  Dunant  died  at 
Heiden  on  October  31, 1910,  but  not  until  he  had  earned  the  Nobel 
prize,  not  for  his  work  for  peace,  but  for  doing  his  part  to  make 
war  a  bit  more  human  and  less  horrible. 

And  these  do  not  stand  alone.  Scarcely  a  town  in  Italy  that 
has  not  somewhere  its  pile  of  skulls.  I  like  the  frank  Italian  way 
of  showing  without  shrinking  the  spoils  of  war — the  men  whom 
war  has  spoiled. 

But  there  are  other  piles  and  piles  of  skulls,  none  the  less  sig- 


246  JUDICIAL  SETTLEMENT 

nificant  because  the  bones  are  buried.  The  walls  of  Paris  tell 
their  story,  Metz,  Worth,  Sedan  the  terrible.  Then  we  can  trace 
our  lines  across  Germany :  Jena,  Leipzig,  Austerlitz — names  called 
glorious  in  the  history  of  the  slaughter  of  young  men — Liitzen, 
Bautzen,  Ulm,  Wagram,  Hohenlinden.  Let  us  pass  them  all  to 
recall  the  grand  army  of  Moscow,  600,000  men,  the  finest  body 
of  men  that  ever  stood  in  line.  Then  let  us  recall  the  blasts  of 
winter,  the  burning  city,  the  hatred  of  the  people  of  the  invaded 
country.  And  after  that  let  us  behold,  with  the  historian,  the 
pitiful  retreat  of  the  20,000  men  who  remained  of  this  great  army. 
The  historian  tells  us  that — 

"Amidst  ever-deepening  misery  they  struggled  on,  until  of 
the  600,000  men  who  had  proudly  crossed  the  Niemen  for  the 
conquest  of  Russia,  only  20,000  famished,  frostbitten,  unarmed 
specters  staggered  across  the  bridge  of  Korno  in  the  middle  of 
December." 

He  continues: 

"Despite  the  loss  of  the  most  splendid  army  marshaled  by 
man,  Napoleon  abated  no  whit  of  his  resolve  to  dominate  Ger- 
many and  discipline  Russia  ...  He  strained  every  effort 
to  call  the  youth  of  the  empire  to  arms;  .  .  .  and  350,000 
conscripts  were  promised  by  the  senate.  The  mighty  swirl  of  the 
Moscow  campaign  sucked  in  150,000  lads  of  under  twenty  years  of 
age  into  the  devouring  vortex  .  .  .  The  peasantry  gave  up 
their  sons  as  food  for  cannon  .  .  .  Many  were  appalled  at 
the  frightful  drain  on  the  nation's  strength  ...  In  less 
than  hah*  a  year,  after  the  loss  of  half  a  million  men,  a  new  army 
nearly  as  numerous  was  marshaled  under  the  imperial  eagles. 
But  the  majority  were  young,  untrained  troops;  and  it  was  re- 
marked that  the  conscripts  born  in  the  year  of  Terror  had  not  the 
stamina  of  the  earlier  levies.  Brave  they  were,  superbly  brave, 
and  the  emperor  sought  by  every  means  to  breathe  into  them  his 
indomitable  spirit  .  .  .  Truly  the  emperor  could  make  boys 
heroes,  but  he  could  never  repair  the  losses  of  1812  .  .  . 
Soldiers  were  wanting;  youths  were  dragged  forth." 


JORDAN  247 

Human  harvest  in  France  was  at  its  worst. 

The  inevitable  result  of  all  this  must  be  the  loss  to  the  nation 
of  the  qualities  which  are  sought  for  in  the  soldier.  It  leaves 
the  nation  crippled,  une  nation  Uessee.  The  effect  does  not  appear 
hi  the  effacement  of  art  or  science  or  creative  imagination.  Men 
who  excel  in  these  regards  are  not  drawn  by  preference  or  by 
conscription  to  the  Me  of  the  soldier.  If  we  cut  the  roots  of  a 
tree,  we  shall  not  affect,  for  a  time  at  least,  the  quality  of  its 
flower  or  its  fruit.  We  are  limiting  its  future  rather  than  chang- 
ing its  present.  In  like  manner  does  war  affect  the  life  of  the 
nation.  It  limits  the  future  rather  than  checks  the  present. 

Those  who  fall  in  war  are  the  young  men  of  the  nations,  men 
between  the  ages  of  eighteen  and  thirty-five;  they  are  the  men  of 
courage,  alertness,  dash,  and  recklessness,  who  value  their  lives 
as  naught  in  the  service  of  the  nation.  The  men  who  are  left 
are,  for  better  and  for  worse,  the  reverse  of  all  this,  and  it  is  they 
that  determine  what  the  future  of  the  nation  shall  be.  They 
hold  its  history  in  their  grasp. 

However  noble,  encouraging,  inspiring  the  history  of  modern 
Europe  may  be,  it  is  not  the  history  we  would  have  the  right  to 
expect  from  the  development  of  its  racial  elements.  It  is  not 
the  history  that  would  have  been  made  had  these  same  elements 
been  released  from  the  shadow  of  reversed  selection  cast  by  frat- 
ricidal war.  The  angle  of  divergence  between  what  might  have 
been  and  what  has  been  is  measured  by  the  parentage  of  strong, 
capable,  and  courageous  men  slain  on  the  bloody  fields  of  glory. 

All  this  applies  not  to  one  nation  alone  nor  to  one  group  of 
nations,  but  in  like  degree  to  all  nations  that  have  sent  forth  their 
young  men  to  the  field  of  slaughter.  As  it  was  with  Greece  and 
Rome,  with  France  and  Spain,  Mauritania  and  Turkestan,  so  has 
it  been  with  Germany  and  England;  so  with  all  nations  that  have 
sent  forth  "the  best  they  breed"  to  foreign  service,  while  retain- 
ing cautious,  thrifty  mediocrity  to  fill  up  the  ranks  at  home. 

Three  millions,  and  seventy  thousand  men — this  is  the  esti- 


248  JUDICIAL   SETTLEMENT 

mate — fell  in  Napoleon's  campaigns.  No  wonder  the  life  of 
Europe  is  impoverished.  No  wonder  that  France  is  a  wounded 
nation,  as  are  all  the  others  whose  men  were  caught  up  in  that 
holocaust.  Napoleon,  it  was  said,  "has  peopled  hell  with  the 
61ite  of  Europe."  Stacked  up  as  on  the  field,  their  skulls  would 
make  a  pile  more  than  a  hundred  tunes  as  high  as  our  own  Wash- 
ington monument.  To  this  cause  almost  alone  we  may  ascribe 
the  social  and  personal  deficiencies  of  the  common  folk  of  Europe. 
To  be  "him  that  overcometh"  one  must  have  a  lineage  made  up 
of  those  who  were  "captains  of  their  fate"  and  "masters  of  their 
soul"  in  their  day  and  generation.  If  we  send  forth  the  best  we 
breed,  there  is  no  way  by  which  those  of  the  future  shall  be  other 
than  second  best. 

In  the  break-up  of  the  Roman  Empire,  no  province  had  a  better 
future  than  Hispania,  and  she  like  others  has  staked  and  lost  her 
future  in  war. 

"  Against  the  credit  for  redeemed  souls,"  said,  in  1620,  LaPuente* 
the  Augustian  friar,  "I  set  the  cost  of  armados  and  the  sacri- 
fice of  soldiers  and  friars  sent  to  the  Philippines.  And  this  I 
count  the  chief  loss.  For  mines  give  silver  and  forests  give  tim- 
ber, but  only  Spain  gives  Spaniards,  and  she  may  give  so  many 
that  she  may  be  left  desolate  and  constrained  to  bring  up  stran- 
gers' children  instead  of  her  own." 

"This  is  Castile,"  says  another  writer.  "She  makes  men  and 
wastes  them."  "This  sublime  and  terrible  phrase,"  says  Captain 
Calkins,  "sums  up  the  whole  of  Spanish  history." 

In  his  charming  studies  of  Feudal  and  Modern  Japan,  Mr. 
Arthur  Knapp  mentions  again  and  again  the  great  marvel  of 
Japan's  military  prowess,  as  shown  in  the  Chinese  War,  after 
more  than  two  hundred  years  of  peace.  It  has  been  even  more 
conclusively  shown  in  the  Russo-Japanese  War  since  Mr.  Knapp's 
book  was  written.  His  astonishment  was  that  after  more  than 
six  generations  in  which  physical  courage  had  not  been  demanded, 
the  virile  qualities  which  make  up  such  courage  were  found  unim- 
paired. 


JORDAN  349 

In  the  light  of  the  reverse  of  this  condition  which  we  have  been 
considering  in  the  case  of  European  nations,  we  can  readily  see 
that  the  experience  of  Japan  was  just  what  we  might  expect.  In 
times  of  peace  there  is  no  slaughter  of  the  strong,  no  sacrifice  of 
the  brave.  In  the  peaceful  struggle  for  existence,  there  is  a  pre- 
mium placed  upon  these  virtues.  The  virile  and  the  brave  sur- 
vive. They  and  their  descendants  are  not  wasted  on  the  battle- 
field. It  is  the  idle,  the  weak,  and  the  dissipated  that  go  to  the 
wall.  "What  won  the  battles  on  the  Yalu,  in  Korea  or  Manchu- 
ria," says  the  Japanese  writer,  Nitobe,  "was  the  ghosts  of  our 
fathers  guiding  our  hands  and  beating  in  our  hearts."  If  we 
translate  this  from  the  language  of  Shintoism  into  that  of  science, 
we  find  it  a  strong  testimony  to  the  fact  of  race-heredity,  the  sur- 
vival of  the  strong  in  the  lives  of  their  self-reliant  and  effective 
sons.  The  shades  of  the  soldiers  who  fell  before  Napoleon  are 
not  guiding  the  hands  or  beating  in  the  hearts  of  the  men  of  Europe 
to-day. 

If  after  two  hundred  years  or  even  twenty  years  of  incessant 
battle  Japan  should  remain  virile  and  warlike,  that  would  indeed 
be  a  marvel.  But  that  marvel  the  world  has  never  seen.  It  is 
doubtless  true  that  military  traditions  are  most  persistent  with 
nations  most  frequently  engaged  in  war.  But  military  tradi- 
tions and  the  physical  strength  to  gain  victories  are  very  different. 
Other  things  equal,  the  nations  which  like  Japan  have  known 
"the  old  Peace  with  velvet-sandalled  feet"  are  most  likely  to 
develop  the  "strong  battalions"  on  which  victory  in  war  is  most 
likely  to  rest. 

What  now  of  Germany?  She  has  had  her  share  of  the  deso- 
lation and  the  degradation  of  war.  It  is  said  that  in  the  Thirty 
Years'  War  the  population  of  Germany  was  cut  down  from  22,- 
000,000  to  8,000,000  people.  It  is  said  that  not  before  1870  was 
Germany  able  to  regain  the  ground  she  held  hi  1618.  It  is  more- 
over claimed  that  while  Germany  is  military  she  is  not  warlike. 
While  there  is  no  nation  so  dominated  by  the  professional  sol- 


250  JUDICIAL   SETTLEMENT 

dier  with  his  mediaeval  scorn  of  commerce,  science  and  all  civilian 
things,  yet  there  is  virtually  not  a  man  in  the  German  army  who 
ever  saw  a  battle.  The  superiority  of  Germany  lies  in  its  science, 
its  industrial  art,  its  commerce,  its  exaltation  of  all  civilian  activi- 
ties. The  evidence  of  the  havoc  of  war  is  not  so  clear  in  Germany 
as  in  most  other  lands  of  Europe.  Perhaps  massacre  and  deso- 
lation destroyed  the  weak  as  often  as  the  strong.  Perhaps  again 
the  fact  of  universal  compulsory  education  and  compulsory 
industrial  training,  with  compulsory  insurance  against  old  age, 
has  greatly  reduced  the  visible  number  of  the  unemployed  and 
of  the  unemployable.  The  factor  of  emigration  which  has  filled 
the  great  cities  of  the  new  world  with  young  Germans,  ambitious 
and  energetic,  is  one  which  we  cannot  estimate  in  comparison 
with  the  effects  of  war.  When  the  best  emigrate,  the  home  lands 
become  impoverished,  but  emigration  gives  new  ideas  and  new 
experiences.  The  loss  of  one  region  is  the  gain  of  another,  and 
the  gam  with  good  men  overbalances  the  loss.  The  men  of  the 
new  world  are  old-world  men  who  have  learned  something  in  a 
new  environment,  lost  something  perhaps  in  exchange  for  all  that 
is  gained,  but  in  the  long  run  the  new  advantages  outweigh  the 
old.  But  loss  which  is  loss  only  comes  from  the  sacrifice  of  the 
strong. 

What  shall  we  say  of  England  and  of  her  place  in  the  history 
of  war?  In  the  Norse  mythology,  it  was  the  Mitgaard  Serpent 
which  reached  around  the  world,  swallowed  its  own  tail  and  held 
the  world  together.  England  has  made  this  a  British  world. 
She  has  made  it  a  world  to  be  proud  of.  Her  young  men  have 
gone  to  all  regions  where  free  man  can  live.  They  have  built 
up  free  institutions,  those  institutions  which  rest  on  cooperation 
and  compromise.  She  has  carried  the  British  peace  to  all  other 
lands  save  those  from  which  our  own  Monroe  doctrine  has  shut 
her  out,  and  she  has  made  it  possible  for  cilivized  men  to  trade 
and  pray  with  savages.  "What  does  he  know  of  England,  who 
only  England  knows?"  For  the  activities  of  Englishmen  have 


JORDAN  251 

been  greater  by  manifold  than  within  the  little  island  from  which 
Englishmen  set  forth  to  inherit  the  earth. 

What  has  all  this  cost?  It  could  not  be  done  unless  it  was  paid 
for,  and  we  must  not  wonder  if  such  strenuous  effort,  such  sacri- 
fice of  life  and  force,  has  left  her  with  something  like  exhaustion. 

There's  a  widow  in  Sleepy  Chester 

Who  mourns  for  her  only  son. 
There's  a  grave  by  the  Pabeng  River 

A  grave  which  the  Burmans  shun. 

If  we  would  know  why  Chester  is  sleepy,  we  have  only  to  turn 
to  her  great  cathedral.  The  long  north  side  of  her  red  sandstone 
walls  tells  of  her  dead,  the  world  over,  and  always  the  same 
story.  Tablets  to  the  memory  of  young  men,  gentlemen's  sons 
from  Eton  and  Rugby  and  Winchester  and  Harrow;  scholars 
from  Oxford  and  Cambridge,  from  Manchester  and  Birmingham 
and  Liverpool,  who  have  given  up  their  lives  hi  some  petty  war 
in  some  far-off  country.  Their  bodies  rest  in  India,  Zululand,  in 
in  Cambodia,  the  Gold  Coast,  the  Transvaal.  In  England  only 
are  they  remembered,  men  who  should  have  been  the  makers  of 

empire. 

It  is  only  my  dead  that  count, 

She  said,  and  she  says  to-day; 
It  isn't  my  fleet  and  it  isn't  my  guns 
That'll  sweep  Trafalgar  Bay. 

These  names  are  recorded  by  the  score  in  every  parish  church, 
by  the  thousand  in  every  cathedral,  and  the  churches  are  num- 
bered by  the  hundred  thousand.  The  statement  that  in  every 
parish  church  such  tablets  may  be  found  might  be  called  in  ques- 
tion. As  a  test  not  long  ago  I  chose  a  solitary  church  standing 
almost  alone  on  a  bleak  plain,  if  I  remember  aright  in  Hereford- 
shire, Whitchurch,  once  celebrated  because  it  employed  the  young 
Handel  as  its  organist.  On  opening  the  door  I  saw  a  tablet— 

"  Sacred  to  the  memory  of  Thomas  Henry,  eldest  son  of  Thomas 
Hall  Plumer,  Esquire,  of  this  Parish,  and  Lieutenant  in  the  49th 


JUDICIAL  SETTLEMENT 

regiment  of  Bengal  National  Infantry.  He  died  in  camp  while 
serving  at  the  siege  of  Moallan,  on  the  i4th  of  December,  1848,  in 
the  27th  year  of  his  age.  His  Sepoys  for  the  love  of  him  bore  his 
body  to  the  grave.  This  tablet  was  erected  by  his  brother  officers." 

Other  tablets  told  of  service  in  India,  but  this  met  the  test, 
and  this  is  typical. 

The  foreign  service  of  England  for  a  hundred  years  has  fur- 
nished careers  for  the  sons  of  the  squire  and  the  gentleman.  For  a 
century  Great  Britain  has  sent  her  strongest  and  most  forceful 
sons.  "Send  forth  the  best  ye  breed,"  and  the  nation  breeds 
from  the  second  best. 

And  in  this  loss  of  the  fair  and  strong,  "  the  unreturning  brave," 
we  may  find  an  answer  to  some  of  England's  most  desperate  prob- 
lems. 

Where  is  the  country  squire  of  English  life  and  English  history? 
Where  are  his  rosy-cheeked  and  strong-limbed  daughters?  Where 
indeed  is  the  typical  John  Bull  of  the  time-honored  cartoon?  Why 
is  it  that  three  or  four — some  say  eleven — millions  of  Englishmen 
are  unable  to  earn  a  decent  living,  or  any  living  at  all,  in  England 
to-day?  Why  is  it  that  these  same  unemployed  are  found 
unemployable  in  Canada,  in  Australia,  or  wherever  they  may  go? 
Why  is  it  that  the  tendency  in  all  average  physical  standards  is 
downward,  while  the  standards  of  the  best  are  growing  always 
higher?  The  answer  lies  in  the  reversed  selection  of  war.  Its 
effects  are  found  in  England  and  everywhere  else  where  strength 
and  courage  have  been  rewarded  by  glory  and  extinction.  Eng- 
land has  exchanged  her  country  squires  for  the  memorial  tablet. 
More  than  for  all  who  have  fallen  in  battle,  or  were  wasted  in 
the  camps,  England  should  mourn  "the  fair  women  and  brave 
men"  that  should  have  been  descendants  of  her  strong  and  manly 
men.  If  we  may  personify  the  spirit  of  the  nation,  England  should 
most  grieve,  not  over  her  unreturning  brave,  but  over  those  who 
might  have  been  but  never  were,  those  who  so  long  as  history 
lasts  can  never  be. 


JORDAN  253 

We  have  fed  our  sea  for  a  thousand  years 

And  she  calls  us  still  unfed, 
Though  there's  never  a  wave  of  all  her  waves 

But  sweeps  o'er  our  British  dead. 

Walk  wide  of  the  Widow  of  Windsor 

For  half  of  creation  she  owns, 
And  we've  bought  her  the  same  with  the  sword  and  the  flame 

And  we've  salted  it  down  with  our  bones. 
Poor  beggars  its  blue  with  our  bones. 

Peace,  peace,  we  wrong  our  noble  dead, 

To  vex  their  solemn  slumber  so. 
Yet  childless,  and  with  thorn-crowned  head, 

Up  the  steep  road  must  England  go! 

By  the  law  of  probability  as  developed  by  Qu£telet,  it  is  claimed 
that  there  will  appear  in  each  generation  the  same  number  of 
potential  poets,  artists,  investigators,  patriots,  athletes,  and  supe- 
rior men  of  each  degree.  This  law,  however,  involves  the  theory 
of  continuity  of  paternity,  that  in  each  generation  a  practically 
equal  percentage  of  men  of  superior  force  or  superior  mentality 
will  survive  to  take  the  responsibilities  of  parenthood.  Other- 
wise this  law  becomes  subject  to  the  action  of  another  law,  that  of 
reversed  selection,  or  the  biological  law  of  "diminishing  returns." 
In  other  words,  breeding  from  an  inferior  stock  brings  race  degen- 
eration, and  such  breeding  is  the  sole  agency  of  such  degener- 
ation; as  selection,  natural  or  artificial,  along  one  line  or  another 
is  the  sole  agency  for  race  progress.  And  all  laws  of  probabilities 
and  averages  are  subject  to  a  still  higher  law,  the  primal  law  of 
biology,  which  no  cross-current  of  life  can  check  or  modify :  Like 
the  seed  is  the  harvest;  almost  alike  but  never  quite,  but  on  the 
whole  always  following  the  lead.  There  is  in  fact  no  law  of 
Que"telet,  save  this:  Under  like  conditions  heredity  runs  alike, 
almost  alike,  but  with  like  variations.  When  conditions  change, 
so  change  the  products  of  heredity. 


254  JUDICIAL  SETTLEMENT 

What  shall  we  say  of  our  own  country,  with  her  years  of  peace, 
and  her  two  great  civil  wars,  the  struggle  of  children  with  then- 
parents,  of  brothers  with  brothers? 

It  may  be  that  war  is  sometimes  justified.  It  is  sometimes 
inevitable,  whether  necessary  or  not.  It  has  happened  once  in  our 
history,  that  "every  drop  of  blood  drawn  by  the  lash  must  be 
drawn  again  by  the  sword." 

It  cost  us  650,000  lives  of  young  men  to  get  rid  of  slavery.  I 
saw  not  long  ago  in  Maryland  one  hundred  and  fifty  acres  of 
these  young  men.  There  are  some  12,000  acres  filled  with  them 
on  the  fields  of  the  South.  And  this  number,  almost  a  million, 
North  and  South,  was  the  best  that  the  nation  could  bring. 
North  and  South,  the  nation  was  impoverished  by  the  loss. 
The  gaps  they  left  are  filled  to  all  appearance.  There  are  rela- 
tively few  of  us  left  to-day  in  whose  hearts  the  scars  of  forty 
years  ago  are  still  unhealed.  But  a  new  generation  has  grown  up 
of  men  and  women  born  since  the  war.  They  have  taken  the 
nation's  problems  into  their  hands;  but  theirs  are  hands  not  so 
strong  or  so  clean  as  though  the  men  that  are,  stood  shoulder  to 
shoulder  with  the  men  that  might  have  been.  The  men  that  died 
in  "the  weary  time"  had  better  stuff  in  them  than  the  father  of 
the  average  man  of  to-day. 

Those  States  which  lost  most  of  their  strong  young  blood,  as 
Virginia,  Louisiana,  the  Carolinas,  will  not  gain  the  ground  they 
lost,  not  for  centuries,  perhaps  never. 

Dr.  Venable,  President  of  the  University  of  North  Carolina, 
told  me  not  long  ago,  that  one-half  the  alumni  of  that  college 
up  to  1865  were  in  the  Civil  War.  One- third  of  these  were  slain. 
We  can  never  measure  our  actual  loss  nor  determine  how  far  the 
men  that  are,  fall  short  of  the  men  that  might  have  been. 

Dr.  Hans  Gadow  of  the  University  of  Cambridge,  who  lately 
visited  the  United  States,  told  me  that  the  most  vivid  impression 
he  got  in  all  his  travels  from  Boston  to  San  Francisco  and  to 
Mexico,  came  from  the  statement  of  a  friend  in  Massachusetts 


JORDAN  255 

to  the  effect  that  his  little  state,  with  less  than  a  million  people, 
had  sent  61,000  men  into  the  Civil  War  because  they  believed 
that  it  was  just.  This  gave  an  impression  of  the  moral  earnest- 
ness involved  in  that  struggle,  which  he  had  gained  in  no  other 
way. 

There  were  in  fact  156,000  men  who  enlisted  in  the  sixty-one 
Massachusetts  regiments.  It  took  at  times  2500  men  to  fill 
the  ranks  to  keep  in  each  regiment  its  full  quota  of  a  thousand 
men.  We  may  recall  Colonel  Halpine's  rhyme  of  "the  thousand 
and  thirty-seven"  showing  how,  at  the  banquet  of  the  officers 
there  were  "the  remnant,  just  eleven,"  where  once 

Twinkled  a  thousand  bayonets 
And  the  swords  were  thirty-seven. 

Edward  H.  Clement,  in  the  Boston  Transcript,  uses  these 
striking  words:  "Ever  since  the  middle  of  the  last  century,  or 
rather  its  last  quarter,  the  lamentation  has  been  heard:  Where 
are  the  poets  of  yesterday?  Where  are  the  'hundred  Boston 
orators'?  Where  are  the  historians,  the  philosophers,  the  political 
leaders,  the  moral  reformers  whom  the  whole  country  and  the 
world  itself  gladly  followed  in  the  liberalizing  of  thought  and  of 
religion  itself? 

"In  the  light  of  emphasis  ...  on  the  degeneration  of 
nations  through  their  glorious  wars,  answer  might  well  be  sought 
in  the  roll  of  honor  of  Harvard  Memorial  Hall.  The  price  was 
worth  paying,  no  doubt.  At  all  events,  the  ones  who  gave  their 
rives  in  the  Civil  War  most  certainly  thought  so.  But  the  price 
was  exacted  all  the  same.  There  stand  the  names  of  those  who, 
but  for  this  sacrifice,  might  have  continued  the  Glory  of  Boston  as 
it  was  in  all  the  higher  reaches  of  the  intellectual  life,  in  national 
politics  and  in  social  advance.  In  their  stead  we  have  been  fain 
to  put  up  with — well,  what  we  have." 

Through  all  time  war  has  told  the  same  story. 

Sophocles  once  said,  two  thousand  years  ago:  "War  does  not 
of  choice  destroy  bad  men,  but  good  men  ever." 


256  JUDICIAL  SETTLEMENT 

Schiller  said:  "Der  Krieg  verschlingt  die  Besten."  (War 
devours  the  best.) 

An  old  French  proverb  says  the  same:  "Ce  sont  toujours  les 
monies,  qui  se  font  tuer."  (They  are  always  the  same  who  get 
themselves  killed.") 

In  our  civil  war,  Captain  Brownell  tells  us  of 

The  deeper  green  of  the  sod 

Where  we  left  the  bravest  of  us. 

John  Esten  Cooke,  in  Virginia,  when  Pelham  fell  at  Kelley's 
Ford,  calls  out: 

O  band  in  the  pine  wood  cease, 

Cease  with  your  splendid  call; 
The  living  are  brave  and  noble, 
The  dead  are  the  bravest  of  all. 

Again,  in  India,  Bartholomew  Bowling: 

Cut  off  from  the  land  that  bore  us, 

Betrayed  by  the  land  we  find, 
When  the  brightest  are  gone  before  us 

And  the  dullest  are  left  behind. 

The  same  motive,  the  same  lesson,  lasts  through  all  ages,  and 
it  finds  keen  expression  in  the  words  of  the  wisest  man  of  our 
early  national  history,  Benjamin  Franklin,  "Wars  are  not  paid 
for  in  war  time:  the  bill  comes  later." 

PRESIDENT  SCOTT:  Ladies  and  gentlemen,  you  are  invited  to  a 
collation  in  the  adjoining  room.  I  am  sure  you  will  not  mind 
spending  a  few  minutes  more  in  this  beautiful  building. 


FOURTH  SESSION 

SATURDAY  MORNING,  DECEMBER  17,  1910 
Hon.  Simeon  E.  Baldwin,  Presiding  Officer 

THE  PRESIDING  OFFICER:  It  is  rather  a  dangerous  experi- 
ment to  organize  a  new  society.  A  friend  of  mine  told  me  some 
time  ago  that  he  was  thinking  of  organizing  a  society  to  sup- 
press all  new  societies,  but  I  think  Mr.  Marburg  and  Dr.  Scott 
and  those  associated  with  them  have  done  wisely  in  forming 
this  particular  new  society  for  the  peaceful  settlement  and  the 
judicial  settlement  of  international  disputes. 

Peace  has  a  machinery  not  less  renowned  than  war.  She  must 
have  it  if  she  would  supplant  war.  She  must  have  something  as 
imposing  as  war  is,  and  she  finds  it  tentatively,  partially,  imper- 
fectly, hi  a  court  of  arbitration.  She  finds  it  perfectly,  glori- 
ously, in  the  international  court.  Therefore  I  value  the  organi- 
zation of  a  society  with  that  sole  end.  To  bring  forward  into 
the  mind  of  the  world  the  idea  of  a  court  of  nations,  a  court  pro- 
ceeding according  to  law,  speaking  by  judges,  rendering  judgment 
—this  idea,  I  say,  is  one  that  deserves  to  be  kept  before  the  world. 
And  as  I  said  last  night,  in  the  presence  of  some  of  you,  the  organ- 
ization of  this  Society  may  properly  take  place  on  American  soil. 
It  is  fitting  that  the  first  society  to  promote  the  judicial  settle- 
ment of  international  disputes  should  be  founded  on  the  conti- 
nent where  so  long  ago  as  1650,  the  middle  of  the  seventeenth 
century,  was  given  the  first  example  in  modern  times  of  an  inter- 
national arbitration  between  the  United  Colonies  of  New  England 
and  the  Dutch  province  of  the  New  Netherlands.  We  are  glad 
to  give  the  primacy  to  the  Netherlands  in  that  it  was  Governor 

257 


258  JUDICIAL  SETTLEMENT 

Stuyvesant  of  New  Netherlands  who  made  the  settlement  by 
arbitration  of  the  boundary  question  between  the  United  Colo- 
nies of  New  England  and  the  New  Netherlands,  and  it  was  Hol- 
land which  subsequently  ratified  the  award  of  the  arbitrators, 
and  adhered  to  the  possession  which  they  gave  her,  although 
England,  our  mother  country,  refused  it. 

We  were  to  have  the  pleasure  of  hearing  first  this  morning 
from  President  Eliot.  He  has  not  yet  entered  the  room,  and 
therefore  I  call  upon  the  next  speaker,  who  will  talk  to  us  on  the 
position  of  the  Supreme  Court  of  the  United  States  as  the  proto- 
type of  a  court  for  and  between  nations,  Dr.  Frederick  N.  Jud- 
son  of  St.  Louis. 


THE  JURISDICTION  OF  THE  SUPREME  COURT  OF 
THE  UNITED  STATES  OVER  THE  CONTROVERSIES 
OF  THE  STATES  A  PROTOTYPE  OF  THE  INTER- 
NATIONAL COURT  OF  ARBITRAL  JUSTICE 

FREDERICK  N.   JUDSON 

Citizens  of  the  United  States  have  a  peculiar  interest  in  this 
movement  for  the  establishment  of  a  judicial  tribunal  to  hear  and 
determine,  according  to  judicial  methods  and  under  judicial  sanc- 
tions, the  controversies  of  the  nations. 

The  first  peace  society  was  organized  in  the  United  States 
in  the  early  part  of  the  last  century;  and  the  Jay  Treaty  of 
1794  between  the  United  States  and  Great  Britain  has  been 
termed  the  starting  point  of  modern  arbitration  among  the 
nations.  The  United  States  cordially  cooperated  with  the  first 
Hague  Conference  and  in  the  provisions  there  agreed  upon  for 
ameliorating  warfare  and  for  an  international  board  of  arbitra- 
tion. The  United  States  has  appeared  in  some  of  the  few  cases 
heard  before  this  Board  of  Arbitration.  President  Roosevelt,  of 
the  United  States,  and  Secretary  Root  were  instrumental  in 


F.  N.  JUDSON  259 

bringing  about  the  Second  Hague  Conference;  and  the  American 
delegates  to  this  Conference  were  foremost  in  their  advocacy,  not 
only  of  an  International  Prize  Court,  but  of  a  Court  of  Arbitral 
Justice  in  accordance  with  the  specific  instructions  of  Secretary 
Root;  and  this  action  has  been  cordially  approved  by  President 
Taft  and  Secretary  Knox. 

Public  international  law  is  what  the  nations  have  agreed  shall 
be  binding  upon  one  another,  and  its  principles  have  been  recog- 
nized and  enforced  by  the  Supreme  Court  of  the  United  States. 

The  unique  position  of  this  country  in  the  development  of 
international  law  has  been  commented  on  by  publicists.1 

In  the  language  of  the  court:2 

"International  Law  is  a  part  of  our  law,  and  must  be  ascer- 
tained and  administered  by  the  courts  of  justice  of  appropriate 
jurisdiction  as  often  as  questions  of  right  depending  upon  it 
are  duly  presented  for  their  determination.  For  this  purpose, 
where  there  is  no  treaty  and  no  controlling  executive  or  legis- 
lative act,  or  judicial  decision,  resort  must  be  had  to  the  customs 
and  usages  of  civilized  nations,  and  as  an  evidence  of  this,  to  the 
works  of  jurists  and  commentators,  who  by  years  of  labor,  research 
and  experience  have  made  themselves  peculiarly  well  acquainted 
with  the  subjects  which  they  treat.  Such  works  are  resorted 
to  by  judicial  tribunals  not  for  the  speculation  of  their  authors 
as  to  what  the  law  ought  to  be,  but  for  trustworthy  evidence  of 
what  the  law  really  is." 

Interesting  and  impressive  as  is  this  position  of  the  United  States 
with  reference  to  the  adoption  and  enforcement  of  the  principles 
of  international  law  and  in  the  movement  for  the  promotion  of 
arbitration  of  national  differences,  there  is  found  in  the  proposed 
substitution  of  the  court  of  arbitral  justice  to  proceed  by  judi- 
cial methods  and  under  a  sense  of  judicial  responsibility  for  the 

1  Lord  Chief  Russell  in  address  to  American  Bar  Association,  1896.     Sir  Henry  Main, 
International  Law. 

2  In  re.  Paquet  Habana,  175  U.  S.,  677. 


260  JUDICIAL   SETTLEMENT 

diplomatic  adjustments  of  arbitration  a  striking  analogy  in  the 
constitutional  history  of  the  United  States,  in  the  substitution 
of  a  judicial  tribunal  for  arbitration  in  determining  the  contro- 
versies of  the  States  of  the  American  Union. 

At  the  time  of  the  adoption  of  the  Constitution  there  were 
existing  controversies  between  eleven  States  respecting  their 
boundaries  which  arose  under  their  respective  charters  and  had 
continued  from  the  first  settlement  of  the  colonies.5 

During  the  colonial  period  disputes  between  the  colonies, 
especially  those  hi  relation  to  boundaries,  had  been  settled  in  the 
English  courts.  In  the  Articles  of  Confederation  provision  was 
made  for  arbitration  of  disputes  between  the  States  concerning 
boundary  jurisdiction  or  any  cause  whatever,  whereunder  Con- 
gress was  authorized  to  appoint  by  joint  consent  commissioners 
or  judges,  and,  if  the  parties  could  not  agree,  to  appoint  a  list 
of  three  persons  from  each  State,  wherefrom  each  party  should 
alternatively  strike  one  until  the  number  was  reduced  to  thirteen, 
and  then  by  lot  reduced  to  not  less  than  seven  nor  more  than 
nine  for  the  determination  of  the  controversy. 

Although  there  were  a  number  of  disputes  concerning  bounda- 
ries, only  one,  that  of  Connecticut  vs.  Pennsylvania,  involving 
title  to  the  lands  in  Wyoming  Valley,  was  presented  and  actually 
heard  and  decided  under  this  provision.  Other  controversies 
were  presented  but  were  settled  by  agreement. 

The  inadequacy  of  this  provision  for  determining  controver- 
sies and  the  almost  inevitable  course  through  concession  to  some 
sort  of  diplomatic  adjustment  were  thus  demonstrated  by  expe- 
rience before  the  adoption  of  the  Constitution  of  1787.  Thus, 
the  experience  of  the  United  States  under  this  scheme  of  arbi- 
tration of  the  controversies  of  the  States  was  substantially  the 
same  as  that  of  the  nations  under  the  tribunal  of  arbitration 
provided  by  the  first  Hague  Conference,  and  now  in  existence, 
for  the  adjustment  of  international  disputes.  In  both  cases  the 

3  Rhode  Island  v.  Massachusetts,  12  Peters,  657. 


F.  N.  JUDSON  26l 

submission  to  arbitration  was  voluntary,  the  arbitrators  were 
selected  by  the  parties,  there  was  an  absence  of  judicial  prece- 
dent and  of  judicial  sanction,  and  in  both  there  was  the  inevitable 
tendency  to  the  determination  of  controversies  by  concession 
and  diplomatic  consideration. 

In  the  convention  of  1787  it  was  at  first  proposed  to  incorpo- 
rate in  the  Constitution  this  provision  for  arbitration;  but  when 
the  section  came  up  for  action  it  was  said  by  Mr.  Rutledge: 
"This  provision  for  deciding  controversies  between  the  States 
was  necessary  under  the  confederation,  but  will  be  rendered 
unnecssary  by  the  national  judiciary  now  to  be  established." 
He  was  seconded  by  Mr.  Wilson,  who  urged  that  the  judiciary 
was  a  better  instrument;  and  finally  the  section  was  stricken  out, 
and  in  lieu  thereof  provision  was  made  by  section  2  of  article 
3  for  extending  the  judicial  power  of  the  federal  government  to 
controversies  between  two  or  more  States  and  between  a  State 
and  citizens  of  other  States,  and  between  a  State  and  the  citizens 
thereof  and  foreign  states,  citizens  or  subjects.  Thus  it  contin- 
ued until  the  adoption  of  the  eleventh  amendment,  1798,  which 
provided  that  the  judicial  power  of  the  United  States  should  not 
be  construed  to  extend  to  any  suit  in  law  or  equity  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any  foreign  states. 
The  provision  of  the  Constitution,  however,  extending  the  judicial 
power  to  controversies  between  two  or  more  States,  and  its 
grant  of  original  jurisdiction  to  the  Supreme  Court  in  all  cases 
in  which  a  State  shall  be  a  party,  has  remained  unchanged  to  the 
present  time. 

The  first  controversy  between  States  in  the  Supreme  Court  was 
the  case  of  New  Jersey  vs.  New  York  in  183 1.4  The  court  said  in 
this  case  that  it  was  immaterial  that  Congress  had  passed  no 
statute  regulating  procedure  in  a  suit  against  a  State;  and  that 
the  court  could  regulate  its  own  procedure  in  this  original  juris- 

4  5th   Peters,    284. 


262  JUDICIAL  SETTLEMENT 

diction;  and  could  make  such  deviations  from  the  general  usages 
as  were  necessary  to  adapt  the  process  of  the  court  to  the  circum- 
stances of  the  country.  It  was  therefore  ruled  that  process 
against  a  State  should  be  served  upon  the  governor  or  attorney- 
general,  and  if  the  defendant  did  not  appear  on  the  return  day, 
having  been  served  sixty  days  before,  the  complainant  could 
proceed  ex  parte.  This  suit  was  adjusted  without  a  hearing,  but 
this  rule  of  procedure  has  been  followed  since. 

In  a  later  case,6  the  court,  in  sustaining  the  right  of  the  United 
States  by  its  attorney-general  to  intervene  in  such  a  controversy 
and  to  be  heard  in  the  argument,  without  becoming  a  party  in 
the  technical  sense  of  the  term,  said  that  it  had  been  theretofore 
determined  that  the  precedents  of  equity  could  not  govern  a  case 
where  a  sovereign  State  was  a  party  defendant,  and  that  the 
precedents  of  the  English  Courts  of  Chancery  furnished  analogies, 
but  nothing  more.  It  became,  therefore,  the  duty  of  the  court  to 
mould  its  proceedings  for  itself  in  a  manner  that  would  best 
serve  the  ends  of  justice  and  enable  it  to  exercise  conveniently 
the  power  conferred;  and  in  doing  this,  it  was  without  doubt  one 
of  its  first  objects  to  disengage  them  from  all  unnecessary  tech- 
nicalities and  niceties  and  to  conduct  the  proceedings  in  the  sim- 
plest form  in  which  the  ends  of  justice  could  be  attained. 

In  the  long  litigation  between  the  States  of  Rhode  Island  and 
Massachusetts, — in  the  court  some  twelve  years,— it  was  strongly 
urged  by  Mr.  Webster  on  the  part  of  Massachusetts  that  the 
jurisdiction  of  the  court  under  the  Constitution  did  not  extend 
to  questions  of  boundary  where  the  question  involved  was  not 
one  of  title  but  one  of  sovereignty.  The  grant  of  the  Constitu- 
tion, it  was  claimed,  did  not  extend  to  all  cases  between  States, 
but  to  "controversies,"  and  that  the  term  included  only  those 
which  were  cognizable  in  a  court  of  justice.  But  the  court  held 
that  the  term  "controversies"  in  the  Constitution,  extended  to 

8  Florida  v.   Georgia,   17  How.  478. 

8  See  izth  Peters,  657;  i4th  Peters,  210;  isth  Peters,  233;  4th  How.  591. 


F.  N.  JUDSON  263 

all  controversies,  and  that  the  court  did  not  act  differently  in 
deciding  boundaries  between  States  than  on  lines  between  separ- 
ate tracts  of  land;  that  there  could  be  but  two  tribunals  in 
the  United  States  which  could  act  on  the  boundaries  of  States— 
the  legislative  or  the  judicial  power — and  the  former  is  limited  in 
express  terms  by  the  Constitution  to  assent  or  dissent,  when  a 
compact  or  agreement  is  referred  to  them  by  the  States;  and  as 
the  judicial  power  can  be  exercised  only  by  the  Supreme  Court 
when  a  State  is  a  party,  the  power  is  in  the  court  or  cannot  exist. 

Chief  Justice  Taney,  however,  dissented  and  held  that  contests 
of  States  for  rights  of  sovereignty  and  jurisdiction  over  any  par- 
ticular territory  were  not  subject  to  judicial  cognizance  and  con- 
trol, as  the  powers  given  to  the  courts  of  the  United  States  were 
judicial  powers  and  extended  to  judicial  subjects  and  not  to  those 
which  are  political.7 

In  a  number  of  subsequent  cases  the  Supreme  Court  has,  without 
objection,  exercised  this  jurisdiction  in  determining  disputes  as 
to  boundaries. 

Thus,  in  Florida  vs.  Georgia,8  Missouri  vs.  Iowa,9  Alabama  vs. 
Georgia,10  Virginia  vs.  West  Virginia,11  South  Carolina  vs.  Geor- 
gia,12 Indiana  vs.  Kentucky,13  Virginia  vs.  Tennessee,14  Iowa  vs. 
Illinois,15  Louisiana  vs.  Mississippi,16  Maryland  vs.  West  Virginia,17 
and  in  North  Carolina  vs.  Tennessee,18  the  court  exercised  this 
jurisdiction  practically  without  dissent. 

I  Although  Chief  Justice  Taney  adhered  to  this  view  throughout  this  case,  he  seems 
to  have  concurred  in  subsequent  judgments  of  the  Court  determining  questions  of  boundary. 

1 17  How.  478. 
•  7  How.  660. 
10  23   How.   505. 
"  ii  Wall.  39. 
"93  U.  S.  4. 
"  136  U.  S.  479. 
14 158  U.  S.  267. 

u  202  U.  S.   59. 
»  202   U.   S.    I. 

IT  217   U.   S.    i. 

II  Now  pending. 


264  JUDICIAL   SETTLEMENT 

In  the  boundary  case  of  Virginia  vs.  West  Virginia  the  court 
said:  "We  consider  the  established  doctrine  of  the  court  to  be 
that  it  has  jurisdiction  of  the  questions  of  boundary  between  two 
States  of  this  union,  and  that  this  jurisdiction  is  not  defeated 
because  in  deciding  that  question  it  becomes  necessary  to  examine 
into  and  construe  compacts  or  agreements  between  those  States, 
or  because  the  decree  which  the  court  may  render  affects  the  juris- 
diction and  sovereignty  of  the  States  which  are  parties  to  the  pro- 
ceedings." 

In  the  determination  of  these  boundary  questions  the  court 
has  applied  the  rules  of  procedure  so  as  to  bring  the  case  to  a  final 
hearing  speedily  and  directly  on  its  merits.  The  issues  are  too 
important  in  character  and  the  interest  concerned  too  great, 
said  the  court,  to  be  decided  on  the  mere  technical  principles  of 
chancery  pleading.  Thus,  it  was  claimed  that  the  bill  of  Rhode 
Island  vs.  Massachusetts 'showed  upon  its  face  that  Rhode  Island 
was  excluded  by  laches  in  its  claim  for  disputed  territory.19 
But  the  court  said  it  was  impossible  to  adopt  the  same  rule  of 
limitation  in  a  case  of  two  political  communities  that  you  would 
apply  in  the  case  of  individuals.  The  boundary  in  question 
was  in  a  wild,  unsettled  country,  and  the  error  in  fixing  the 
line  of  a  grant  was  not  likely  to  be  discovered  until  the  lands  were 
opened  by  the  respective  colonies  and  occupied  by  the  settlers. 
The  court,  therefore,  held,  under  a  broad  construction  of  the 
equities  applicable  to  such  conditions,  that  the  plaintiff  was  not 
barred;  and  the  defendant  was,  therefore,  directed  to  answer  to 
the  merits.20 

In  the  last  boundary  case  decided  by  the  court,21  the  opinion 

"15  Peters,  233. 

20  15  Peters,  233.  In  the  final  determination  of  this  case  in  1846  (4th  How.,  591)  it 
was  said  that  a  full  statement  with  an  abstract  of  the  historical  documents  in  evidence 
would  require  a  volume.  The  claim  of  Rhode  Island  was  based  on  an  alleged  mistake 
in  surveys  made  nearly  a  century  before.  The  court  found  that  though  Rhode  Island 
had  acted  in  good  faith,  no  other  conclusion  was  warranted  than  a  dismissal  of  the  bill, 
leaving  Massachusetts  in  possession  of  the  disputed  territory. 

a  Maryland  v.  Virginia,  217  U.  S.,  i. 


F.  N.  JTJDSON  265 

quotes  from  Vattel  and  Wheaton  as  to  the  controlling  principles 
of  international  law  applicable  to  determination  of  the  bound- 
ary lines  of  independent  states,  and  says  that  such  controversy 
must  be  decided  according  to  the  facts  under  these  principles  in 
such  a  manner  as  would  least  disturb  private  rights  and  titles 
regarded  as  settled  by  the  people  not  affected. 

The  jurisdiction  of  the  court  has  been  exercised  also  in  cases 
not  involving  questions  of  title  or  sovereignty.  Thus,  it  has  con- 
sidered the  claim  of  the  State  of  Kansas22  that  the  waters  of  the 
Arkansas  River  had  been  diverted  by  the  State  of  Colorado  in 
its  irrigation  works  to  the  damage  of  the  State  of  Kansas,  and 
also  the  claim  of  the  State  of  Missouri  that  the  waters  of  the 
Mississippi  River  were  polluted  by  the  drainage  canal  constructed 
by  the  State  of  Illinois.23  In  the  latter  case  the  court  held  the 
State  was  entitled  to  maintain  a  suit  for  equitable  relief  in  advance 
of  any  actual  injury,  and  that  acquiescence  by  the  State  in  the 
devising  and  carrying  out  of  a  system  of  sewage  by  another  State 
was  not  a  bar  to  relief. 

In  these  cases  the  principle  was  broadly  asserted  that  where 
the  health  and  comfort  of  the  inhabitants  of  a  State  are  threat- 
ened by  the  action  of  another  State,  the  State  is  the  proper 
party  to  represent  the  defendant  before  this  forum.  In  the 
Missouri-Illinois  case,24  in  overruling  the  demurrer  to  the  bill  of 
complaint  the  court  said:  "If  Missouri  were  an  independent 
and  sovereign  State  all  must  admit  that  she  could  seek  a  remedy 
by  negotiation,  and,  that  failing,  by  force.  Diplomatic  powers 
and  the  right  to  make  war  having  been  surrendered  to  the  gen- 
eral government,  it  was  to  be  expected  that  upon  the  latter 
would  devolve  the  duty  of  providing  a  remedy;  and  that  remedy 
is  found  in  this  Constitutional  provision  for  the  determining  of 
the  conotroversies  of  the  States." 

"185  U.  S.,  128;  206  U.  S.,  46. 
»  180  U.  S.,  208;  200  U.  S.  496. 
M  180  U.  S.  208. 


266  JUDICIAL   SETTLEMENT 

In  the  determination  of  this  case25  the  court  said  the  only  ques- 
tion was  whether  between  the  States  in  the  Union  the  court  was 
competent  to  deal  with  the  situation  which,  if  it  arose  between 
independent  sovereignties,  might  lead  to  war.  Whatever  differ- 
ences of  opinion  there  might  be  upon  matters  of  detail,  the 
jurisdiction  or  authority  of  court  to  deal  with  such  a  case  as  that 
is  not  open  to  doubt.  It  may  be  imagined,  said  the  court,  that 
a  nuisance  might  be  created  by  a  State  upon  a  navigable  river, 
like  the  Danube,  which  will  constitute  a  casus  belli  for  a  State 
lower  down  and  less  removed.  If  such  a  nuisance  was  created 
by  a  State  upon  the  Mississippi  the  controversy  would  be  dis- 
solved by  the  most  peaceful  means  in  this  court. 

In  the  Kansas-Colorado  case,26  the  court  said  that  what  else- 
where would  be  a  cause  of  war,  in  this  country  must  be  discharged 
by  resort  to  judicial  power;  that  the  court  had  jurisdiction  on  the 
question  of  the  power  of  one  State  to  wholly  deprive  another  of 
the  benefit  of  water  rising  in  the  former  and  by  nature  flowing  into 
the  latter,  and  that  the  Supreme  Court  sat  as  an  international  as 
well  as  a  domestic  tribunal  and  applied  Federal  law,  State  law, 
and  international  law,  as  the  exigencies  of  the  case  demanded, 
and  that  while  the  Federal  government  in  its  legislation  was  one 
of  enumerated  powers,  the  entire  judicial  power  of  the  United 
States  was  vested  in  the  Supreme  Court. 

The  exceptional  dignity  and  momentous  importance  of  the 
jurisdiction  was  emphasized  by  the  court  in  saying  that  it  did 
not  follow  that  every  matter  which  would  warrant  a  resort  to 
equity  by  one  citizen  against  another  in  the  same  jurisdiction, 
equally  would  warrant  an  interference  by  this  court  in  the  action 
of  the  State. 

Though  the  right  to  maintain  the  bill  was  sustained  in  each  of 
these  cases  and  exhaustive  proofs  were  taken,  the  court  held  in 

24  200  U.  S.  496. 

MU.  S.,  128.  106  U.  S.,  46. 


F.  N.  JTJDSON  267 

both  that  there  was  a  failure  of  sufficient  proof  and  orders  of  dis- 
missal without  prejudice  were  entered. 

While  the  court  has  uniformly  declined  to  permit  the  consti- 
tutional inhibition  of  the  Eleventh  Amendment  to  be  evaded  by 
entertaining  suits  under  the  names  of  the  State  on  causes  of  action 
belonging  to  private  persons,27  or  to  hold  the  State  responsible 
for  the  acts  of  officials  which  it  had  neither  authorized  nor  con- 
firmed,28 it  had,  on  the  other  hand,  broadly  construed  the  original 
jurisdiction  in  sustaining  suits  by  a  State  against  citizens  of  other 
States.  Thus  the  court  entertained  a  bill  filed  by  the  State 
of  Georgia  to  enjoin  a  defendant  copper  company  from  discharg- 
ing noxious  gases  from  their  works  in  Tennessee  over  complain- 
ant's territory.29  The  court  said  that  when  the  States,  by  their 
union,  made  the  forcible  abatement  of  outside  nuisances  impos- 
sible to  each  they  did  not  thereby  agree  to  submit  to  whatever 
would  be  done.  They  did  not  renounce  the  possibility  of  making 
reasonable  demands  on  the  grounds  of  their  still  remaining  quasi 
sovereign  interests,  and  the  alternative  to  force  is  a  suit  in  the 
Supreme  Court.  There  were  some  peculiarities,  said  the  court, 
which  necessarily  marked  a  suit  of  this  kind.  If  a  State  has  a 
case  it  is  more  entitled  to  specific  relief  than  a  private  party.  It 
is  not  lightly  to  be  required  to  give  up  quasi  sovereign  rights  for 
pay.  The  States  by  entering  the  Union,  did  not  sink  to  the  posi- 
tion of  private  owners,  subject  to  one  system  of  private  law.  It 
was  a  proper  and  reasonable  demand  on  the  part  of  a  sovereign 
State  that  the  air  over  its  territories  should  not  be  polluted  on  a 
great  scale  by  sulphuric  acid  gas;  and  such  a  suit  may  well  be 
entertained  on  behalf  of  a  sovereign  State  when  a  private  party 
would  be  remitted  to  his  remedy  by  action  for  damages. 

A  case  of  very  different  character  came  recently  before  the 
court,  and  is  now  pending  in  the  bill  filed  by  the  State  of  Vir- 

"  New  York  v.  Louisiana,  108  U.  S.,  76. 
18  Louisiana  vs.  Texas,  176  U.  S.,  i. 
*•  206  U.  S.,  230. 


268  JUDICIAL  SETTLEMENT 

ginia  against  West  Virginia,80  wherein  an  adjudication  is  sought 
of  the  amount  due  the  former  State  by  the  latter  as  an  equitable 
proportion  of  the  public  debt  of  the  original  State  of  Virginia 
which  was  assumed  by  the  State  of  West  Virginia  at  the  time 
of  its  creation  as  a  State. 

This  case  differed  from  the  preceding  in  that  it  was  the  first 
in  which  an  adjudication  in  a  money  judgment  was  directly 
sought.  It  was  strongly  urged  that  the  court  had  no  jurisdic- 
tion as  it  was  not  such  a  controversy  which  the  court  could 
determine  and  enforce,  as  the  court  had  no  power  to  compel  the 
legislature  of  West  Virginia  to  levy  a  tax  or  appropriate  money 
or  issue  bonds;  that  it,  therefore,  could  not  provide  for  the  pay- 
ment of  any  judgment  or  decree,  and  it  could  not  even  appoint  a 
commissioner  or  receiver  to  collect  the  tax  or  issue  bonds,  even 
if  the  tax  had  been  imposed  by  the  proper  legislative  authority 
or  the  issue  of  bonds  had  been  authorized.  But  the  court  said 
that  that  was  no  reason  for  denying  the  jurisdiction  of  the  court. 
It  was  not  to  be  presumed  that  West  Virginia  would  refuse  to 
carry  out  the  decree  of  the  court,  and  that  if  such  repudiation 
should  be  absolutely  asserted,  the  court  could  then  consider  by 
what  means  a  decree  should  be  enforced.  Consent  to  be  sued 
was  given  when  West  Virginia  was  admitted  into  the  Union  and 
it  must  be  assumed  that  the  legislature  of  the  State  would,  in  the 
natural  course,  make  provision  for  the  satisfaction  of  any  decree 
which  may  be  rendered.81 

A  case  now  pending  in  the  court  presents  still  a  different 
controversy.  The  people  of  the  State  of  New  York,  in  their 
original  bill  against  the  State  of  New  Jersey  and  the  Passaic 
Valley  Sewer  Commissioners,  complain  of  the  discharge  of  sewer- 
age from  the  Passaic  River  into  the  waters  of  New  York  Harbor 

"209  U.  S.,  514- 

11  In  this  case  upon  the  filing  of  the  answer,  the  court  made  an  order  referring  the  case 
to  a  special  master  for  the  determination  of  the  basis  of  the  proportion  of  the  debt  to  be 
thereafter  reported  to  the  court. 


F.  N.  JUDSON  269 

to  the  detriment  of  the  people  of  New  York,  claiming  that  the 
waters  of  the  Bay  of  New  York,  are  not  capable  of  dissipating  and 
disposing  of  the  sewerage  emptied  therein.82 

Thus,  this  jurisdiction  has  been  exercised  in  questions  of  dis- 
puted boundary  involving  title  and  sovereignty,  of  rights  in 
navigable  streams  flowing  through  coterminous  territory,  of  the 
enjoining  of  nuisances  in  adjoining  States,  of  protection  of  har- 
bors from  sewage  pollution,  and  in  the  ascertainment  and  appor- 
tionment of  public  money  obligations. 

These  controversies  might  all  of  them  have  been  causes  of 
war  between  independent  sovereign  States.  Yet  all  of  them  have 
been  submitted  to  the  peaceful  decision  of  a  permanent  judicial 
tribunal  in  the  direct  course  of  its  jurisdiction,  and  the  judgments 
have  been  peacefully  acquiesced  in,  in  like  manner  as  the  judg- 
ments upon  controversies  of  private  litigants. 

There  are  now  forty-six,  soon  to  be  forty-eight,  States  in  the 
Union.  There  were  forty-five  signatory  states  in  the  Second 
Hague  Conference,  which  concurred  in  the  recommendation  of 
this  proposed  International  Court  of  Arbitral  Justice.  The  judi- 
cial jurisdiction  over  the  controversies  of  the  states  was  preceded 
by  a  necessarily  ineffective  system  of  arbitration;  essentially 
the  same  as  that  adopted  by  the  first  Hague  Conference.  Thus, 
we  find  this  striking  analogy  in  the  promotion  of  this  last  move- 
ment in  the  cause  of  adjusting  international  differences. 

Some  may  criticize  this  analogy  and  say  that  it  is  imperfect 
for  the  reason  that  the  States  of  the  American  Union  were  under 
a  common  federal  government,  while  the  sovereign  states  of  the 
world  who  are  parties  to  the  Hague  Conference  are  independent 
sovereignties,  bound  by  no  governmental  tie,  and  that  the  pro- 
posed court  of  the  nations  would  have  no  executive  force  and  no 
sheriff  or  marshal  or  posse  to  execute  its  process. 

Such  attempted  distinction  ignores  the  ultimate  dependence 
not  only  of  judicial  decrees,  for  their  enforcement,  but  the  depen- 

"See  case  No.  5,  Original  October  Term,  1910. 


270  JUDICIAL   SETTLEMENT 

dence,  in  its  final  analysis,  of  all  government,  upon  public  opinion. 
Especially  is  this  clear  when  judicial  decrees  are  entered  against 
organized  political  communities.  In  such  a  case  obedience  is 
dependent  upon  that  public  opinion  which  rests  upon  the  cus- 
tomary habit  of  the  people.  The  Supreme  Court  has  not  at- 
tempted to  invoke  the  executive  arm  of  the  Federal  government 
in  enforcing  its  decrees  against  the  sovereign  State  of  the  Union. 
Thus,  decrees  of  the  court  have  been  obeyed  because  of  the  will 
of  the  people  that  they  must  be  obeyed.  When  that  public 
opinion  fails,  no  legal  process  can  force  obedience,  whether  in 
the  adjudication  of  the  public  controversies  of  the  States  or  even, 
as  experience  has  shown,  in  the  enforcement  of  laws  against  crimes. 
When  that  public  opinion  has  failed  in  the  past  the  judgments  of 
the  courts  have  been  in  vain. 

This  dependence  of  the  law  upon  public  opinion  has  been 
illustrated  by  our  Supreme  Court  in  the  opinions  of  two  chief 
justices,  Marshall  and  Taney. 

Thus,  in  1831,  the  State  of  Georgia  openly  defied  the  judgment 
of  the  Supreme  Court  that  a  certain  conviction  and  imprison-, 
ment  by  the  State  court  was  in  violation  of  the  treaties  and  laws 
of  Congress  which  had  been  enacted  for  the  protection  of  the 
Cherokee  Indians,33  and,  it  may  be  added,  the  action  of  the  state 
was  ignored  also  by  the  executive  of  the  Federal  government. 

In  1859,  when  the  public  opinion  of  the  country  was  sharply 
divided  on  the  slavery  question,  when  the  Civil  War  was  impend- 
ing, the  Supreme  Court  of  Wisconsin  liberated  under  a  writ  of 
habeas  corpus  a  party  who  had  been  convicted  in  the  United 
States  District  Court  of  that  State  of  violating  the  Fugitive 
Slave  Law,  holding  that  the  law  was  void.  The  Supreme  Court, 
in  an  opinion  by  Chief  Justice  Taney,  said  in  emphatic  terms  that 
the  law  was  a  valid  enactment  and  this  action  of  the  State  court 
was  directly  subversive  to  the  principle  whereon  the  govern- 
ment was  founded. 

M  Worcester  vs.  Georgia,  6  Peters  515. 


F.  N.  JUDSON  271 

The  Supreme  Court  of  the  State,  however,  effectually  defied 
this  judgment;  and  the  indicted  party  was  thus  released  by  the 
State  court,  although  the  Supreme  Court  of  the  United  States 
held  that  he  had  been  lawfully  sentenced  by  Federal  authority. 
It  was  in  this  opinion  that  Chief  Justice  Taney  made  the  follow- 
ing impressive  and  even  pathetic  reference  to  the  constitutional 
jurisdiction  over  the  controversies  of  the  States,  which  proved 
ineffective  in  determining  a  controversy  in  the  absence  of  the 
public  opinion  essential  to  the  effective  exercise  of  such  a  juris- 
diction: 

"The  importance  which  the  framers  of  the  Constitution 
attached  to  such  a  tribunal,  for  the  purpose  of  preserving  internal 
tranquility,  is  strikingly  manifested  by  the  clause  which  gives 
this  court  jurisdiction  over  the  sovereign  States  which  compose 
this  Union,  when  a  controversy  arises  between  them.  Instead 
of  reserving  the  right  to  seek  redress  for  injustices  from  another 
State  by  their  sovereign  powers,  they  have  bound  themselves  to 
submit  to  the  decision  of  this  court,  and  to  abide  by  its  judgment. 
And  it  is  not  out  of  place  to  say,  here,  that  experience  has  dem- 
onstrated that  this  power  was  not  unwisely  surrendered  by  the 
States;  for,  in  the  time  that  has  already  elapsed  since  this  govern- 
ment came  into  existence,  several  irritating  and  angry  control 
versies  have  taken  place  between  adjoining  States  in  relation  to 
their  respective  boundaries,  and  which  have  sometimes  threat- 
ened to  end  in  force  and  violence,  but  for  the  power  vested  in 
this  court  to  hear  them  and  decide  between  them." 

It  is  important  to  recognize,  as  having  a  direct  bearing  on  the 
expediency  of  establishing  an  international  court  to  determine 
by  judicial  methods  the  controversies  of  the  nations,  that  the 
institution  of  this  essentially  international  jurisdiction  in  the 
Supreme  Court  of  the  United  States  has  had  a  far-reaching  and 
effective  influence  in  educating  public  opinion  into  reliance  upon 
judicial  methods  for  the  determination  of  such  controversies 
between  the  States.  It  is  not  too  much  to  say  that  such  incidents 


272  JUDICIAL  SETTLEMENT 

as  the  defiance  of  the  Supreme  Court  by  the  State  of  Georgia  in 
1831,  and  by  Wisconsin  in  1859,  would  now  be  all  but  incon- 
ceivable. 

The  essential  dependence  of  the  successful  exercise  of  this 
jurisdiction  upon  the  public  opinion  of  the  States  was  illustrated 
in  an  opinion  of  the  court  at  the  last  term,  in  the  boundary  case 
of  Maryland  vs.  West  Virginia,  where  the  court  said  that  if  their 
decision  could  possibly  have  a  tendency  to  distribute  titles  de- 
rived from  one  State  or  the  other,  from  grants  long  acquiesced  in 
giving  the  force  and  right  of  prescription  to  the  ownership  in 
which  they  were  held,  it  would  be  the  pleasure,  as  it  would  be  the 
manifest  duty,  of  law-making  bodies  of  the  two  States  to  deter- 
mine and  confirm  such  private  rights  upon  principles  of  justice 
and  right  applicable  to  the  situation. 

Private  warfare,  at  one  time  the  rule,  yielded  slowly  after  the 
establishment  and  operation  of  judicial  tribunals  for  the  deter- 
mination of  private  controversies.  The  notion  long  survived, 
even  in  comparatively  modern  times,  and  is  not  yet  entirely  ex- 
tinct, that  while  the  courts  should  protect  property  rights,  indi- 
viduals should  properly  resort  to  force  for  the  protection  of  then- 
person  and  even  for  the  redress  of  wrongs  to  their  reputation. 
We  hear  now  that  nations  can  not  arbitrate  or  resort  to  the 
courts  on  questions  affecting  national  honor.  But  just  as  the 
growth  of  public  opinion  under  the  operation  of  courts  of  justice 
has  been  effective  in  removing  private  war,  so  will  the  public 
opinion  of  the  world,  for  a  time  perhaps  haltingly,  but  in  the 
end  certainly,  recognize  that  when  the  opportunity  for  judicial 
determination  of  inernational  controversy  by  judicial  methods 
is  afforded,  the  ways^  of  reason  are  far  better  than  the  ways  of 
force. 

The  devlopment  of  this  public  opinion,  which,  in  the  last  analy- 
sis is  essential  to  the  final  disappearance  of  war  and  its  attendant 
curses  to  mankind,  is  now  powerfully  accelerated  by  the  world- 
wide pressure  of  the  increasing  cost  of  living  upon  the  masses  of 


F.  N.  JTJDSON  273 

mankind.  The  recent  report  of  the  commission  appointed  by  the 
State  of  Massachusetts,  submitted  in  May,  1910,  contains  an  ex- 
haustive and  non-partisan  study  of  the  causes  of  this  high  cost 
of  living,  which  has  attracted  attention  both  in  this  and  other 
countries.  The  report  gives  the  unanimous  conclusion  that  the 
most  far-reaching  influence  in  creating,  fostering  and  perpetuating 
the  high  cost  of  living  is  militarism  with  its  incidents  of  war, 
waste  and  consequent  burdens  of  taxations;  and  that  the  expense 
of  the  great  armaments  of  the  nations  was  hardly  a  less  burden 
than  that  of  actual  war.  The  United  States  is  expending  over 
70  per  cent  of  the  national  income  for  past  or  future  wars.  The 
great  wars  of  recent  and  of  all  times  have  been  attended  with  a 
rise  in  the  cost  of  living  and  an  increased  burden  upon  the  masses 
of  mankind.  Lloyd  George,  in  a  recent  speech,  says  that  $2,250,- 
000,000  raised  by  taxation  is  spent  for  armaments,  and  the  yearly 
increase  is  $1,000,000,000.  Such  figures  of  what  may  be  called 
national  waste,  are  indeed  appalling.  The  public  opinion  of  the 
world  is  now  more  alert,  and  under  the  enlightening  influences 
of  our  time  is  becoming  better  informed  and  a  more  potent  power 
than  ever  before.  The  masses  of  the  people  upon  whom  the  bur- 
dens of  militarism  rest  with  crushing  force  are  beginning  to 
realize  that  they  must  pay  the  cost  of  this  mad  race  in  the  prepara- 
tion for  war.  Impending  national  bankruptcies  and  growing 
popular  disaffection  with  the  burden  of  taxation  imposed  by  the 
cost  of  militarism  will  in  time  surely  create  a  demand,  which 
rulers  and  governing  classes  must  heed,  for  the  removal  of  this 
crushing  burden  from  the  struggling  laboring  masses  of  mankind. 
From  another  point  of  view  it  may  be  that  the  judgments  of 
our  proposed  international  court  may  possess  a  positive  sanction. 
The  powers  of  Europe  combined  not  only  against  the  ambition 
of  Napoleon,  but  in  the  liberation  of  Greece,  the  neutrality  of 
Switzerland  and  Belgium,  and  in  the  defense  of  Turkey  against 
Russia  in  the  maintenance  of  the  so-called  balance  of  power.  The 
European  powers  and  the  United  States  joined  their  forces  in 


274  JUDICIAL   SETTLEMENT 

the  protection  of  the  Chinese  Empire  and  foreign  embassies 
in  the  Boxer  uprising.  When  an  international  tribunal  is  organ- 
ized, as  it  only  can  be  organized,  with  the  concurrence  of  these 
powers,  is  it  not  reasonable  to  assume  that  they  will  be  as  ready 
to  cooperate  in  the  enforcement  of  the  judgments  of  such  a  tri- 
bunal in  the  interest  of  international  peace? 

Publicists  have  commented  on  the  influence  for  peace  of  stable 
government.  During  the  long  Roman  peace,  bloodshed  practically 
ceased  in  the  world.  The  stability  of  the  Chinese  Empire  and 
the  English  control  of  warring  races  in  India,  have  powerfully 
contributed  to  peace  in  the  Orient.  Religious  and  dynastic  wars 
have  ceased.  The  peace  of  the  world  is  now  imperilled  by  the 
demands  for  control  of  commercial  outlets,  by  the  forcible  and 
conflicting  extension  of  so-called  spheres  of  influence,  the  hos- 
tility of  races  and  the  break-up  of  ancient  monarchies.  Over  all 
such  controversies  the  enlightened  public  opinion  of  the  strong 
and  stable  nations  of  the  world  would  have  a  mighty  influence 
in  sustaining  and  enforcing  the  judgments  of  our  international 
court,  and  thus  furnishing  a  world-wide  peace. 

Such  a  tribunal,  when  constituted,  would  administer  essen- 
tially the  same  fundamental  principles  of  justice  which  have 
been  declared  by  the  Supreme  Court  of  the  United  States  in 
determining  the  controversies  of  the  States.  These  decisions  of 
the  Supreme  Court  may  well  be  precedents  for  the  guidance  in 
like  questions  of  an  international  court.  The  law  thus  declared 
by  the  court  in  such  cases  was  not  any  narrow  provincial  system 
of  law,  but  embodied  fundamental  principles  of  justice  recog- 
nized by  all  nations.  It  was  the  jus  gentium  in  the  comprehen- 
sive sense  of  the  Roman  jurists,  the  universal  law  of  mankind 
because  resting  on  the  nature  of  things  and  the  general  sense 
of  equity  which  obtains  among  all  men — that  which  compels 
recognition  everywhere  by  reason  of  its  inherent  reasonableness. 
It  is  law  in  this  sense  "which  hath  her  seat  in  the  bosom  of  God, 
and  her  voice  is  the  harmony  of  the  world." 


ELIOT  275 

THE  PRESIDING  OFFICER  (BALDWIN):  Next  to  religion  the 
greatest  force  in  the  world  is  education,  and  one  of  the  greatest 
forces  in  American  education  for  the  last  generation  has  been 
the  President  for  that  generation  of  the  oldest  of  our  American 
colleges.  I  now  introduce  to  you  President  Eliot  of  Harvard, 
who  will  speak  to  us  on  defects  of  arbitration  as  a  means  of 
settling  disputes. 


THE  DEFECTS  OF  ARBITRATION  AS  A  MEANS  OF 
SETTLING  INTERNATIONAL  DISPUTES 

CHARLES  W.  ELIOT 

The  American  Society  for  Judicial  Settlement  of  International 
Disputes  advocates  the  establishment  of  a  permanent  court  of 
justice,  supported  pecuniarily  by  the  nations  jointly,  capable  of 
gradually  establishing  precedents  by  which  it  would  be  governed, 
and  therefore  of  building  up  international  law  and  international 
practice  before  the  court.  This  is  something  very  different 
from  a  provision  of  arbitrators  or  umpire  for  each  dispute;  yet 
it  is  by  international  arbitration  before  special  tribunals  that 
peace  between  the  nations  has  been  most  effectively  promoted 
during  the  past  fifty  years.  The  public  has  become  habituated 
to  the  idea  of  arbitration  between  nations ;  and  The  Hague  Con- 
ference of  1907  arrived  at  an  agreement  or  convention  concern- 
ing an  international  court  of  arbitral  justice.  This  invaluable 
action  on  the  part  of  that  Conference  seems,  however,  to  imply 
an  arbitration  between  two  disputants  to  which  both  have  con- 
sented, to  be  conducted  by  a  special  and  temporary  tribunal, 
rather  than  an  adjudication  of  the  rights  of  the  disputants  by  a 
permanent  tribunal  to  which  all  international  disputes  between 
the  nations  accepting  and  supporting  the  tribunal  should  be 
referred. 


276  JUDICIAL   SETTLEMENT 

It  is  natural  that  public  opinion  has  not  as  yet  gone  much 
beyond  the  arbitration  method  as  means  of  preventing  war. 
Within  the  last  fifty  years  many  international  disputes  have 
been  settled  by  special  arbitral  tribunals  or  single  umpires;  and 
recognition  of  the  good  results  of  arbitration  in  the  past  tends  to 
make  men  who  would  promote  peace  rely  on  that  method  for 
the  future.  Nevertheless,  as  has  often  been  pointed  out,  there  are 
many  objections  to  international  arbitration.  In  the  first  place, 
the  tribunal  is  special  and  temporary,  and  it  is  difficult,  if  not 
impossible,  through  the  action  of  a  series  of  such  tribunals  to 
build  up  a  solid  body  of  international  law  and  international 
practice.  Secondly,  the  nature  of  the  tribunal  itself  leaves  much 
to  be  desired.  To  trust  a  single  umpire  is  obviously  risky.  It 
is  a  common  practice  for  each  of  the  disputing  nations  to 
name  an  arbitrator,  the  two  thus  named  selecting  a  third  who 
is  practically  an  umpire.  Under  this  arrangement,  the  votes  of 
two  of  the  arbitrators  may  be  expected  to  be  thrown  in  favor 
of  the  nation  they  respectively  represent;  although  there  have 
been  honorable  exceptions  to  this  rule.  At  any  rate,  two  of  the 
arbitrators  are  sure  to  have  preconceived  notions  or  prejudices. 
Moreover,  with  such  a  temporary  tribunal,  having  no  body  of 
precedents  and  no  similar  experience  behind  it,  much  has  to  be 
left  to  the  discretion  or  personal  good  judgment  of  the  arbitrators. 
Furthermore,  the  temporary  tribunal,  or  the  single  umpire, 
almost  inevitably  seeks  to  discover  some  available  compromise, 
which  will  give  something  to  each  of  the  disputants,  but  to 
neither  its  extreme  claim.  Now,  a  compromise  may  be  an  expe- 
dient temporary  adjustment;  but  it  is  seldom  satisfactory  to 
either  party,  and  it  often  leads  within  a  moderate  period  to  a  re- 
newal of  strife  by  one  party  or  the  other,  or  by  both, — unless  the 
original  dispute  was  an  isolated  case  which  did  not  arise  from 
any  continuous  or  habitual  national  activities. 

There  are  then  some  difficulties  in  regard  to  international 
arbitration  as  a  means  of  preventing  war.  It  is  immeasureably 


ELIOT  277 

better  than  war  as  a  mode  of  settling  international  disputes 
which  have  already  reached  a  critical  stage,  or  have  become 
chronic  and  poisonous;  but  there  are  firm  grounds  for  the  con- 
tention of  this  Society  that  the  judicial  settlement  of  interna- 
tional disputes  by  a  permanent  court  would  supply  much  better 
defenses  against  war  between  civilized  nations. 

It  has  seemed  to  me  that  some  support  for  the  contention  of 
this  Society  is  afforded  by  the  general  experience  of  civilized 
nations  concerning  arbitration  in  fields  not  intemational.  In 
the  first  place,  it  is  to  be  observed  that  private  persons  who  are 
involved  in  a  dispute  seldom  resort  to  arbitration  as  a  means  of 
settling  it.  They  almost  invariably  prefer  to  settle  their  con- 
troversies by  a  trial  before  a  permanent  court,  where  they  expect 
to  find  a  judge  who  is  in  general  impartial  and  quite  uncommitted 
in  the  case  they  propose  to  put  before  him,  and  who  follows 
general  rules  which  have  been  found  through  long  experience  to 
promote  the  administration  of  public  justice.  For  this  preference 
there  are  just  and  solid  reasons. 

In  the  second  place,  most  of  the  civilized  nations  have  had 
considerable  experience  of  arbitration  as  a  means  of  settling 
industrial  strife,  and  this  experience  is  not  altogether  favorable. 
In  industrial  warfare  voluntary  arbitration,  or  arbitration  com- 
pelled by  public  opinion  or  by  the  distress  of  the  combatants, 
is  often  much  to  be  preferred  to  the  prolongation  of  the  strife; 
but  as  a  means  of  preventing  industrial  warfare  it  is  clear  that 
arbitration  has  failed  in  numerous  cases  and  in  many  different 
nations.  The  reasons  for  such  failures  are  plain.  The  two  par- 
ties between  whom  strife  is  approaching  both  look  forward  to 
an  ultimate  arbitration  which,  to  their  thinking,  is  sure  to  be  a 
compromise.  Each  party  therefore  exaggerates  its  demands  or 
claims,  in  the  hope  that  the  compromise  later  decided  upon  by 
the  umpire  or  board  of  arbitrators  will  give  it  all  it  really  has 
reason  to  expect  as  the  issue  of  the  contention.  An  employing 
corporation,  for  example,  comes  to  the  conclusion  that  it  cannot 


278  JUDICIAL   SETTLEMENT 

preserve  a  just  profit  in  its  business  under  existing  market  con- 
ditions, unless  the  wages  of  its  employees  are  reduced  by  five 
per  cent;  but  they  anticipate  a  strike  immediately  upon  the 
announcement  of  any  reduction,  and  they  think  it  probable  that 
they  will  be  forced  to  consent  to  an  arbitration  after  the  strike 
has  lasted  some  weeks,  and  has  inflicted  inconveniences  and  losses 
on  the  public.  Looking  forward  distinctly  to  a  compromise  as 
the  result  of  arbitration,  they  propose  a  reduction  of  ten  per  cent 
in  the  wages  instead  of  five,  thus  aggravating  the  contest.  A 
trades-union  will  often  reverse  this  process,  in  planning  a  strike 
which  they  think  will  ultimately  be  composed  by  an  arbitration, 
after  a  few  weeks'  vacation  from  labor  for  its  members.  They 
demand  a  ten  per  cent  increase  of  wages,  when  really  they  will 
be  content  with  the  five  per  cent  which  they  expect  arbitrators 
ultimately  to  give  them.  Tariff  fights  are  also  conducted  in  an 
analogous  way,  duties  being  put  high  in  order  that  negotiators 
may  have  room  to  make  concessions.  This  sort  of  experience 
with  arbitrations  actually  promotes  industrial  strife,  makes 
strikes  frequent,  and  strengthens  the  hands  of  agitators  and  pro- 
moters of  discontent.  Expectation  of  ultimate  arbitration  makes 
owners  of  industrial  plants  more  willing  to  close  them  for  a  tune, 
when  mercantile  conditions  are  unfavorable  to  continuous  pro- 
duction; because  they  feel  assured  that  if  widespread  distress 
ensues  and  public  indignation  is  aroused  they  can  at  any  rate 
accept  an  arbitration  which  will  protect  them  from  serious  loss 
through  its  inevitable  tendency  to  mediation  and  compromise. 
This  is  an  accurate  description  of  the  way  industrial  arbitration 
has  worked  in  most  of  the  civilized  countries.  A  sure  prospect 
of  arbitration  is  felt  by  each  combatant  to  diminish  the  risks  he 
takes  in  joining  battle.  It  often  produces  cessation  of  actual 
warfare,  the  re-establishment  of  an  interrupted  industry,  and  a 
brief  truce;  but  in  the  large  view  and  the  long  run  it  rather  en- 
courages and  promotes  industrial  strife  than  prevents  it.  If 
an  industrial  contest  could  be  promptly  brought  before  a  per- 


ELIOT  279 

manent  court  for  final  settlement  in  accordance  with  long-stand- 
ing rules  and  principles,  with  an  expectation  that  the  decision 
of  the  court  would  be  just  and  final,  the  parties  to  industrial 
strife  would  be  much  less  disposed  than  they  now  are  to  go  to  war. 
They  would  be  held  back  by  the  possibility  of  losing  their  whole 
case;  since  the  exclusive  aim  of  a  permanent  court  would  be 
justice  and  not  compromise,  a  final  adjudication  concerning  the 
rights  of  the  parties,  and  not  the  immediate  composing  through 
compromise  of  a  troublesome  disturbance. 

A  good  result  of  an  arbitration  in  industrial  warfare  is  the 
publicity  which  is  thereby  given  to  the  causes  of  the  strife  and 
the  proceedings  of  the  combatants.  Through  this  publicity 
public  opinion  is  often  much  informed,  and  is  enabled  to  exercise 
a  pressure  which  is  effective  although  it  has  no  legul  force.  Pro- 
ceedings before  a  court  of  law  would  ordinarily  have  an  enlight- 
ening effect  upon  the  public  mind;  and  there  is  still  a  third 
method  which  is  characterized  by  insistence  upon  an  appeal  to 
public  opinion  before  an  industrial  combat  can  legally  be  opened 
through  strike  or  lockout.  This  is  the  method  of  the  Canadian 
Industrial  Disputes  Investigation  Act,  the  most  successful  act 
for  the  prevention  of  actual  industrial  warfare  which  has  yet  been 
devised.  It  is  the  distinction  of  this  Act  that  it  prescribes  no  ar- 
bitration whatever,  and  that  the  outcome  of  each  investigation  is 
nothing  but  an  opinion  expressed  by  a  special  tribunal  of  three 
men  after  a  searching  inquiry,  the  results  of  which  are  published 
in  the  most  thorough  manner.  The  Act  provides  for  a  complete 
revelation  of  the  causes  and  objects  of  the  dispute;  but  stops 
there.1  Either  party  to  a  dispute  may  procure  the  appointment 
of  a  special  tribunal,  just  as  a  plaintiff  may  draw  a  defendant  into 
court;  but,  unlike  a  court,  the  tribunals  under  this  Canadian 

'The  International  Commission  of  Inquiry  established  by  the  First  Hague  Confer- 
ence (1809)  is  a  similar  institution  for  the  nations.  Resort  to  it  in  1904  resulted  in 
the  differences  between  Great  Britain  and  Russia,  arising  from  the  Dogger  Bank  affair, 
being  composed  amicably. — [THE  EDITOR.] 


280  JUDICIAL   SETTLEMENT 

Act  have  no  authority  to  impose  a  decision  of  the  case  on  either 
party  to  the  strife.  The  Act  puts  off  actual  warfare  till  after  an 
inquiry,  and  so  makes  impossible  a  sudden  blow  without  notice. 
This  Act  has  now  been  in  successful  operation  for  nearly  four 
years.  As  means  of  preventing  industrial  warfare  it  far  sur- 
passes every  arbitration  scheme  which  has  ever  been  tried. 

Arbitration  then  is  seldom  resorted  to  in  private  controversies; 
and  the  experience  of  the  industrial  nations  during  the  past  fifty 
years  with  the  serious  combats  between  labor  and  capital  tends 
to  the  conclusion  that  arbitration  is  not  a  real  preventive  of 
industrial  warfare,  but  only  a  last  resource  for  stopping  a  battle 
engaged. 

It  is  a  fair  inference  from  these  considerations  that  a  permanent 
court  for  the  judicial  settlement  of  international  disputes  would 
afford  better  guarantees  for  peace  than  any  temporary  arbitral 
tribunals. 

THE  PRESIDING  OFFICER  (BALDWIN):  An  opportunity  is  now 
given  for  brief  discussion  of  President  Eliot's  paper. 

MR.  OSCAR  T.  CROSBY:  It  occurs  to  me  to  point  out  that 
however  well  founded  may  be — and  I  believe  it  is  well  founded — 
the  statement  just  made  in  President  Eliot's  paper,  namely,  that 
a  judicial  determination  of  international  disputes  is  to  be  pre- 
ferred to  arbitral  determination,  yet  I  think  it  should  be  borne 
in  mind  that  such  an  international  court  as  may  be  established 
by  consent  of  nations  must  for  many,  many  years  exercise  arbitral 
functions  in  this  sense,  that  it  will  proceed  without  a  code,  and 
in  that  sense  will  be  applying,  as  do  arbitrators,  the  common  sense 
and  the  common  judgment  and  common  conscience  of  the  civili- 
zation to  which  they  belong.  International  law  as  it  exists  to-day 
is  but  a  thread  here  and  there,  threads  chiefly  woven  to  bind  the 
wounds  of  war.  Nine  tenths  of  all  that  is  called  the  international 
code  may  at  once  be  described  on  analysis  as  applying  to  a  hap- 


DISCUSSION  28l 

pening  that  follows  war.  There  is  little,  negligibly  little,  that 
has  to  do  with  those  great  relations  which,  when  they  are  dis- 
turbed, bring  on  war.  There  will  be  no  international  law,  in 
the  full  and  proper  sense  of  that  word,  guiding  a  judicial  body  in 
the  full  and  proper  sense  of  that  word,  for  many  generations. 
The  contest  between  the  United  States  and  Spain  was  not  the 
subject  of  any  known  codification  or  recognized,  stated  principle 
of  international  law.  It  is  hard  to  call  up  to  our  minds  at  this 
moment  any  of  the  great  contests  which  really  excited,  to  the 
very  fibers  of  their  being,  the  nations  of  the  world,  which  was  at 
all  covered  by  a  code  of  international  law.  But  with  all  that 
clearly  before  me,  I  yet  turn  my  face,  as  does  the  organization 
which  I  chance  to  represent — and  which,  by  the  way,  was  the 
organization  that  presented  to  Congress  the  resolution  which 
has  resulted  in  the  appointment  soon  to  be  made,  we  trust,  of  a 
peace  commission  by  the  President — I  and  the  organization  which 
I  represent  yet  steadfastly  turn  towards  the  appointment  of  a 
body  that  may  be  called  a  court,  recognizing  that  that  body  must 
be  so  chosen,  so  boldly  endowed  with  power  by  the  nations  that 
it  will  be  understood  that  when  great,  radical,  deep-lying  questions 
are  presented  to  it,  it  will  be  making  law  in  one  sense,  just  as  every 
judicial  system  has  originated,  in  the  wisdom  of  the  chief  of  the 
tribe.  The  judges,  as  they  ruled  over  Israel,  did  not  apply  well 
digested  codes,  but  they  applied  the  wisdom  of  their  day  and 
their  tribe.  So  it  seems  to  me  the  great  tribe  of  the  world  must 
set  up  a  body  in  which  confidence  shall  be  had,  who,  when  a 
question  which  has  set  the  nations  quivering  shall  be  presented 
to  it,  shall  say,  "There  is  no  code,  but  this  is  the  wisdom  and  the 
justice  of  the  human  society  to  which  we  belong." 

I  have  said  this  merely  because  it  has  seemed  to  me  that  on 
this  subject  much  drifting  sentiment  has  been  expressed  and 
somewhat  crude  sentiment.  I  believe  that  no  real  progress  will 
be  made  in  the  diminishment  of  armaments,  though  much  prog- 
ress will  be  made  in  the  delays  of  wars — by  any  other  means 


282  JUDICIAL   SETTLEMENT 

than  the  establishment  of  a  body  of  judges  who  shall  apply  to 
the  settlement  of  international  disputes  the  common  wisdom  and 
conscience  of  our  day.  Remember  that  the  diminishment  of 
armaments  is  one  question  and  the  delays  of  war  quite  another 
question,  so  separable  in  fact,  that  the  great  school  of  militar- 
ism declares  that  the  attainment  of  peace,  that  is,  the  delay 
of  war,  is  to  be  had  by  the  maintenance  of  armaments. 

The  organization  to  which  I  belong  stands  for  the  early  en- 
deavor to  diminish  the  expense  of  armaments  as  a  matter  per- 
haps as  important  as  the  avoidance  of  occasional  war  between 
nations.  In  order  that  that  may  be  accomplished  we  believe  that 
no  program  can  possibly  succeed  which  does  not  include  the  bold 
effort  of  the  nations  to  establish  over  themselves  a  common  supe- 
rior endowed  with  power  to  enforce  its  decrees. 

THE  PRESIDING  OFFICER  (BALDWIN)  :  The  facts  so  vigorously 
set  forth  by  the  last  speaker  will  be  reenforced  in  the  next  paper, 
which  is  on  the  subject  of  the  concentration  of  effort  upon  judicial 
settlement  of  international  disputes.  The  number  of  public- 
spirited  men  in  this  country  who  have  been  devoting  themselves 
of  late  years  largely  to  the  promotion  of  public  causes  is  one  of 
the  good  signs  of  our  times;  and  one  of  the  men  most  active  in 
this  propaganda  is  Mr.  William  Dudley  Foulke,  President  of  the 
National  Municipal  League,  whom  we  shall  now  hear. 

CONCENTRATION  OF  EFFORT  UPON  JUDICIAL  SET- 
TLEMENT OF  INTERNATIONAL  DISPUTES 

WILLIAM  DUDLEY  FOULKE 

Mr.  Chairman,  Ladies  and  Gentlemen,  I  am  sorry  to  strike 
what  may  be  a  discordant  note,  but  my  convictions  upon  the 
subject  of  the  one  remedy  are  so  strong  that  I  ought  to  express 
them  to  you  candidly. 


FOULKE  283 

I  can  remember  in  the  times  when  the  agitation  against  African 
slavery  began  it  took  many  divergent  channels.  There  were 
cries  of,  "Lo  here!"  and  "Lo  there!"  from  different  directions. 
Some  said,  "We  must  colonize  the  negroes  in  Africa."  Others 
demanded  immediate,  unconditional  emancipation  in  all  the 
States,  even  though  the  Constitution  of  our  country  forbade. 
Others  said,  "We  must  have  no  further  connection  with  slave 
holders,"  even  though  that  might  involve  a  separation  of  the 
North  from  the  South. 

There  was  just  one  thing  that  could  then  be  legally  and  effec- 
tively done.  That  was  to  restrict  the  area  of  slavery  so  it  would 
not  have  sufficient  territory  to  grow  in — sufficient  for  its  con- 
tinued development.  So  an  organization  was  formed  which 
consecrated  the  infant  territories  to  f-reedom.  Then  secession 
came  on,  and  the  war  and  the  abolition  of  slavery  as  its  result. 
All  those  cries  for  colonization  and  immediate  emancipation  di- 
verted men's  attention  from  the  one  thing  that  needed  to  be  done. 

We  have  now  cries  of,  "Lo,  here  is  disarmament!"  and  "Lo, 
there  is  neutralization  of  territory!"  These  things  are  diverting 
our  minds  from  the  one  thing  that  is  necessary,  and  that  is  to 
provide  an  adequate  substitute  for  war  hi  the  maintenance  of 
justice  and  the  settlement  of  disputes  between  nations.  Then 
the  other  things  will  naturally  follow.  That  is  the  beginning. 
Any  other  is  simply  to  put  the  cart  before  the  horse,  and  you 
cannot  go  forward  very  well  in  that  way. 

First  as  to  disarmament.  Every  effort  made  up  to  the  present 
time  to  limit  armaments  has  proved  abortive.  That  is  what  the 
Czar  of  Russia  attempted  when  he  called  the  first  Hague  Con- 
ference. The  Conference  did  not  at  all  succeed  in  reducing  or 
limiting  armaments,  yet  it  did  a  great  thing  when  it  brought  up  the 
subject  of  arbitration  and  gave  it  such  additional  sanction  from 
the  powers.  There  was  the  line  of  least  resistance.  There  was 
the  real  thing  to  be  done. 

Is  it  really  so  sure  that  these  great  armaments  increase  the  evils 
of  war?  Is  it  not  possible  that  they  diminish  them? 


284  JUDICIAL  SETTLEMENT 

Mr.  Bloch,  whose  work  was  the  inspiration  of  the  Czar's  call 
for  the  first  Conference,  tried  to  demonstrate  in  his  book  that 
the  terrible  character  of  the  instrumentalities  of  modern  war- 
fare and  the  enormous  expense  entailed  would  soon  make  war 
impossible  That  prophecy  has  not  yet  been  realized,  but  a  good 
deal  has  been  done  in  that  direction.  The  drift  is  all  that  way. 
Wars  occur  more  infrequently  than  they  used  to.  They  are 
much  shorter  than  they  used  to  be. 

There  is  Germany,  which  is  armed  to  the  teeth — no  other 
nation  of  modern  times  has  been  so  fully  armed — yet  for  the 
last  forty  years  Germany  has  preserved  absolutely  the  peace  of 
western  Europe.  We  have  had  wars  an  the  Balkan  peninsula, 
war  between  China  and  Japan,  war  between  Japan  and  Russia, 
war  between  our  own  cotmtry  and  Spain,  and  war  between  Eng- 
land and  the  Transvaal;  but  in  the  countries  around  the  boun- 
aries  of  the  German  Empire  there  has  been  constant  peace  for 
forty  years,  no  aggressive  and  no  great  injustice  to  any  of  them. 
May  it  not  be  that  the  German  armament  was  the  cause  of  peace? 

There  is  another  remarkable  thing,  and  that  is  that  in  those 
forty  years  Germany  has  taken  on  an  industrial  development  so 
great  that  even  our  own  will  not  equal  it.  She  has  done  this 
under  adverse  circumstances  in  spite  of  obstacles  that  we  do  not 
encounter.  She  has  no  thousands  of  miles  of  coast,  with  harbors 
for  her  ships  everywhere,  yet  her  commerce  to-day  is  second  in 
the  world.  She  has  no  mineral  resources  equal  to  our  own;  her 
agricultural  treasures  are  greatly  inferior;  she  has  no  great 
undeveloped  territory;  yet  Germany  has  made  progress  in  indus- 
try and  wealth  greater  in  proportion  than  any  other  nation  on  the 
globe. 

Industry  marches  now  with  its  great  legions  and  martial  strides 
and  it  may  be  that  military  training  is  not  so  bad  a  thing.  It 
seems  hard  that,  as  they  say,  each  laborer  must  carry  a  soldier 
on  his  back,  but  at  the  same  time  may  it  not  be  that  the  efficiency 
of  that  labor  is  thereby  greatly  increased?  May  it  not  be  that 


FOULKE  285 

the  spirit  of  solidarity,  the  habit  of  instant  obedience  to  command, 
the  endurance  of  hardship,  the  patience,  the  feeling  that  men 
must  work  together,  and  the  power  of  organization,  have  been 
an  offset  to  the  terrible  evils  which  we  all  admit  are  the  results 
of  militarism  in  the  world? 

There  is  another  thing,  too,  in  regard  to  the  development  of 
character.  The  elements  of  a  purely  military  character  contain 
of  course  some  grave  defects,  and  yet  if  you  take  the  men  dis- 
tinguished in  military  life,  the  generals  and  admirals  and  captains 
of  our  army  and  navy — take  such  men  as  Grant  and  Sherman 
and  Farragut  and  Lee,  and  compare  them  with  the  so-called 
great  captains  of  industry  in  the  matter  of  character, — which  wil 
stand  the  highest?  That  sordid  acquisitiveness,  that  disregard 
of  the  rights  of  others  which  prevails  in  commercial  life,  as  illus- 
trated by  child  labor,  by  the  sweat  shop,  by  the  efforts  of  many 
of  our  financial  kings  to  seize  by  corrupt  means  the  control  of 
the  government  of  this  great  republic — these  things  tell  us  that 
the  balance  of  virtue  is  not  altogether  on  one  side,  on  the  side  of 
industry  and  against  the  other! 

The  chief  evil  against  which  we  have  to  protect  our  country 
to-day  is — too  great  commercialism  rather  than  too  great  mili- 
tarism. The  pendulum  has  swung  in  that  direction. 

Idealists  say  that  if  we  will  only  disarm,  other  nations  will 
follow  our  example.  But  can  we  afford  to  do  it?  We  have  a 
terrible  warning  in  the  case  of  China.  There  they  divide  society 
into  different  classes.  The  highest  is  the  scholar,  because  mind 
is  greater  than  matter;  next  the  farmer,  because  he  produces 
things  necessary  for  mankind;  next  the  craftsman,  because  he 
makes  things  into  the  forms  in  which  they  may  be  ot  use;  next  the 
tradesman,  to  bring  them  to  your  door.  Last  of  all  is  the  soldier, 
despised  by  all,  because  his  power  is  given  to  destruction  and  not  to 
creation.  That  is  a  splendid  ideal ;  but  whither  has  it  led  China? 

That  mighty  nations,  the  greatest  in  the  world  in  population, 
nearly  three  times  as  large  as  our  own  country  in  territory,  has 


286  JUDICIAL   SETTLEMENT 

been  the  foot-ball  of  the  cabals  of  foreign  courts,  and  has  been 
again  and  again  despoiled  of  her  territory.  Right  at  this  moment, 
when  it  comes  to  the  composition  of  the  international  prize 
court  or  of  this  proposed  court  of  arbitral  justice,  how  is  it  sug- 
gested that  that  court  shall  be  composed?  Of  one  member  from 
each  of  the  eight  great  nations;  and  of  seven  members  to  be 
chosen  indiscriminately  from  all  the  smaller  nations.  Little 
Japan  is  one  of  the  great  nations — and  why?  Because  she  is 
a  military  power.  Poor  China  is  thrown  into  the  category  of 
inferior  nations,  all  of  which  are  to  select  seven  members — and 
why?  Because  she  is  not  a  military  power. 

Do  we  want  to  follow  the  ideal  to  such  a  goal  as  that?  It 
seems  to  me  disarmament  will  come  only  by  agreement  between 
the  nations.  It  will  come  in  tune,  but  it  is  still  a  long  way  off 
and  something  else  has  to  be  done  first. 

Equally  illusory  is  the  idea  of  neutralization  of  territory. 
That  has  been  successful  in  some  cases — in  Switzerland  and  Bel- 
gium, for  instance — though  perhaps  everywhere  success  is  due 
not  so  much  to  the  agreement  to  neutralize  as  to  the  mutual 
jealousy  of  the  surrounding  powers.  Switzerland  is  the  buffer 
between  France  and  Austria  and  between  Germany  and  Italy, 
and  the  jealousy  of  these  powers  would  keep  it  independent  even 
without  an  agreement. 

We  have  had  in  the  far  East  the  illustration  spoken  of  this 
morning,  the  Ottoman  Empire.  What  was  rhe  result?  Even 
the  tryanny  of  Russia  could  hardly  have  been  worse  than  the 
frightful  reign  of  Abdul  Hamid. 

Another  territory  that  has  been  neutralized  is  the  Congo. 
What  has  been  the  result  there?  It  has  been  left  to  stew  in  its 
own  juice,  a  horrible  example  of  slaughter,  devastation  and 
iniquity.  Let  us  not  neutralize,  if  it  will  lead  to  anything  like 
the  conditions  in  the  Congo. 

We  and  Germany  had  a  joint  protectorate  over  Samoa.  It  did 
not  work.  The  protected  territory  had  to  be  divided.  So  now 


FOULKE  287 

we  have  charge  of  one  island,  and  Germany  has  charge  of  the 
rest.  Let  us  not  try  neutralization. 

There  is  just  one  thing  that  has  been  successful  and  that  will 
be  successful  in  a  different  form  in  the  future.  That  is  arbitra- 
tion, developed  into  an  international  court  for  the  settlement  of 
international  disputes.  If  you  follow  other  remedies,  you  follow 
strange  gods.  That  is  the  one  thing. 

Arbitration  has  worked  very  well.  Arbitration,  however,  at 
least  in  its  beginnings,  is  essentially  an  opportunist  measure.  As 
Doctor  Eliot  has  well  shown  you,  the  idea  was  this:  Here  are 
two  nations.  They  have  got  into  a  quarrel.  They  do  not  want 
to  fight  just  now.  So  they  each  select  an  arbitrator,  and  these 
two  select  an  umpire.  Very  good,  but  the  umpire  does  not  have 
to  follow  any  fixed  rules  of  law.  Arbitration  on  the  whole  has 
been  successful  simply  because  it  has  been  a  great  deal  better 
than  war.  Nearly  all  the  awards  have  been  accepted.  A  few 
have  not.  There  was  the  arbitration  between  America  and 
England  in  regard  to  the  Maine  boundaries,  submitted  to  the 
King  of  the  Netherlands.  He  did  not  follow  the  claims  or 
demands  of  either  party,  but  established  a  boundary  which  he 
himself  thought  fair,  and  both  the  parties  agreed  to  set  it  aside. 
There  were  two  arbitrations  in  South  America  where  the  findings 
were  not  accepted.  In  one  of  them  the  practices  of  the  court  of 
arbitration  were  suspected.  Then  there  is  quite  a  reeent  case, 
that  of  the  United  States  against  Venezuela.  In  1903  the  claims 
of  the  Orinoco  Steamship  Company  against  the  latter  country 
were  submitted  to  arbitration.  An  arbitrator  was  chosen  on  each 
side  and  the  umpire  by  the  Queen  of  the  Netherlands.  It  had 
been  provided,  in  the  original  contract  between  the  Orinoco 
Steamship  Company  and  Venezuela,  that  all  claims  under  the 
contract  should  be  submitted  to  the  local  courts  and  should 
not  give  rise  to  international  dispute,  but  in  the  submission  of 
those  claims  to  the  umpire,  the  convention  provided  that  he  was 
to  decide  according  to  absolute  right  and  justice  and  without 


288  JUDICAL   SETTLEMENT 

regard  to  local  laws  or  to  any  technicalities.  He  threw  out 
the  claims.  The  United  States  government  complained  of  that 
and  asked  to  set  aside  the  arbitration.  The  case  has  been  recently 
decided  at  The  Hague,  and  that  tribunal  decided  that  the  award 
must  be  set  aside  because  the  umpire  had  violated  the  conditions 
upon  which  the  arbitration  was  committed  to  him,  that  is,  that 
he  should  decide  upon  the  absolute  right  and  justice  of  the  case 
and  not  upon  technical  questions  and  not  upon  any  local  laws. 
So  the  award  has  been  set  aside.  Most  of  the  contentions  of 
Venezuela  in  that  particular  case,  however,  were  justified  in  the 
finding  of  the  Hague  tribunal  when  the  arbitration  was  set  aside. 
These  facts  show  the  infirmities  of  arbitration.  Yet  in  no  case 
has  the  failure  of  arbitration  led  to  war. 

Now  comes  the  next  step,  and  that  is  the  establishment  of  a 
court.  There  we  are  to  have  a  system  of  precedents,  a  system 
that  will  develop  into  law.  The  umpire  in  an  arbitration  need  not 
decide  any  case  in  accordance  with  the  decisions  of  previous 
tribunals.  He  can  decide  according  to  his  own  sweet  will.  But 
if  a  court  is  established,  the  precedents  of  that  court  go  to  the 
making  of  law,  and  pretty  soon  you  will  find  out  what  that  law  is. 
Lord  Kenyon  said  it  was  more  important  there  should  be  law 
and  that  the  people  know  it,  than  what  the  law  was.  So  we  will 
soon  have  a  system  of  precedents  if  we  can  get  the  court  estab- 
lished. 

The  success  of  the  court  will  depend  upon  its  personnel  and 
upon  the  character  of  its  judgments.  If  it  shall  be  like  the  Supreme 
Court  of  the  United  States  and  have  a  man  at  its  head  like  John 
Marshall, — it  will  soon  obtain  the  acquiescence  and  approval  of 
mankind.  It  will  have  a  moral  influence  that  will  finally  sweep 
all  before  it.  If,  on  the  other  hand,  that  court  should  be  com- 
posed of  commonplace  persons  and  they  should  make  two  or 
three  serious  mistakes  or  be  subject  to  any  suspicion,  they  would 
set  back  the  progress  of  this  reform  perhaps  for  a  generation. 

Every  nation  will  have  the  highest  motive  for  putting  the  best 


FOULKE  289 

men  on  that  court.  As  a  matter  of  national  pride,  if  we  appoint 
a  judge  before  the  cause  of  action  arises,  we  shall  be  pretty 
sure  to  try  to  appoint  the  best  man  available.  Other  nations 
will  do  the  same.  So  I  have  the  best  hopes  for  the  final  success 
of  that  tribunal. 

But  there  is  another  thing.  If  that  tribunal  is  successful, 
there  is  no  reason  why  nations  should  not  submit  to  it  questions  of 
honor  and  vital  interest.  The  notions  of  what  honor  is  and  what 
cases  fall  under  that  head,  and  what  is  "vital  interest"  and  what 
is  not,  are  very  obscure  and  nebulous.  At  first  the  only  things 
submitted  to  arbitration  were  pecuniary  disputes.  Now  ques- 
tions of  territory  are  submitted,  like  the  question  of  the  Alaska 
boundary  or  the  line  between  Brazil  and  Peru.  If  we  leave  it 
to  each  nations  to  say  what  its  honor  demands  and  what  is  its 
vital  interest,  we  may  take  away  the  jurisdiction  of  the  court 
altogether.  I  can  understand  why  sovereign  nations  do  not 
want  to  submit  such  matters  to  arbitration  as  at  present  organized, 
but  I  think  they  would  be  willing  to  submit  them  to  a  court 
properly  constituted,  if  that  court  should  vindicate  its  title  to 
the  confidence  of  mankind  by  having  such  a  man  as  John  Marshall 
at  its  head. 

The  different  States  of  the  Union  submit  all  questions  of  honor 
and  vital  interest  to  our  Supreme  Court.  The  states  of  Central 
America  submit  all  questions  of  honor  and  vital  interest  to  the 
court  at  Cartago.  A  sovereign  state  can  do  what  an  individual 
can.  Formerly  a  man  would  not  submit  a  question  of  honor  to 
a  court,  but  decided  it  by  the  duel;  but  now  these  questions  are 
submitted  to  courts  and  decided  by  them,  and  I  believe  every  one 
is  better  satisfied  than  under  the  other  method. 

This  international  tribunal  will  differ  from  the  Supreme  Court 
of  the  United  States  in  the  fact  that  there  will  be  at  first  no 
sanction  for  its  decrees.  There  is  no  federal  army,  there  is  no 
international  executive  bound  to  enforce  the  judgment  of  the 
court.  How  is  it  proposed  to  provide  this  sanction?  What  is 


2QO  JUDICIAL   SETTLEMENT 

necessary?  In  the  first  place,  we  have  public  opinion.  The 
opinion  will  be  very  strong  that  a  nation  which  has  assented  to 
the  composition  of  this  court  ought  to  abide  by  its  decrees.  If 
public  opinion  is  only  intense  enough  and  universal  enough 
throughout  the  world,  it  will  control  anything.  It  will  be  better 
than  any  law  or  any  army  in  the  world.  But  perhaps  it  may  not 
be  strong  enough  for  a  while  when  the  court  is  new;  then  what 
shall  we  do? 

It  is  proposed  to  withhold  credit  from  the  nation  that  will  not 
abide  by  its  decrees.  That  will  be  difficult  to  enforce,  because 
even  public  opinion  will  not  be  sufficient  to  prevent  a  financier 
from  making  a  good  investment  in  the  bonds  of  a  nation  that 
is  at  war. 

It  is  proposed  gradually  to  develop  an  international  police. 
Such  a  police  would  have  to  be  stronger  than  the  armies  of  any 
one  nation  before  it  could  be  really  effective.  It  may  develop 
in  time.  That  will  be  a  growth. 

But  there  is  another  thing  that  can  be  done  right  now.  The 
nations  can  agree, — all  of  them,  if  they  will,  but  the  most  power- 
ful of  them  if  all  cannot  be  induced  to  consent — agree  that  they 
will  keep  the  peace  by  providing  that  the  decrees  of  this  court 
shall  have  the  sanction  of  all  the  nations  entering  into  that 
agreement.  That  is  the  immediate  way,  the  first  way  of  getting 
at  it.  An  agreement  of  that  kind  will  itself  dispense  with  the 
necessity  of  resorting  to  anything  more  drastic.  Other  measures 
may  be  developed  in  the  future. 

I  regard  this  court  as  valuable  not  only  in  itself,  but  because  it 
is  one  step  in  that  development  which  leads  to  the  federation  of 
the  world.  If  we  look  at  past  history,  we  see  the  gradual  develop 
ment  of  the  family  into  the  clan,  then  the  tribe,  then  the  nation, 
then  the  great  empire,  leaving  only  one  final  step  to  be  taken,  and 
unless  all  the  analogies  of  history  and  sociology  fail,  the  world 
is  sure  to  take  it. 


THE  CHAIRMAN  (BALDWIN)  :  I  will  call  now  for  the  report  of  the 
Committee  on  Nominations,  appointed  yesterday  to  nominate 
officers  for  the  year  beginning  February  6,  1911.  Is  the  Com- 
mittee ready  to  report? 

MR.  WILSON:  The  Committee  appointed  on  yesterday  desire 
to  submit  the  following  report: 

For  Honorary  President,  William  Howard  Taft. 

For  President,  John  Hays  Hammond,  of  Washington,  D.  C. 

For  Vice  President,  Simeon  E.  Baldwin,  of  Connecticut. 

For  Secretary,  Theodore  Marburg,  of  Baltimore,  Maryland. 

For  Treasurer,  J.  G.  Schmidlapp,  of  Cincinnati,  Ohio. 

The  term  of  office  of  these  officers  is  to  begin  and  take  effect 
upon  the  expiration  of  the  term  of  the  present  officers,  February 
6,  1911. 

For  members  of  the  Executive  Committee,  W.  W.  Willoughby 
and  Henry  B.  F.  Macfarland. 

By  -virtue  of  the  constitution,  all  the  officers  including  the  ex- 
Presidents,  become  ex-officio  members  [of  the  Executive  Commit- 
tee, and  therefore  we  shall  retain  the  effective  cooperation  of  our 
retiring  President. 

THE  CHAIRMAN  (BALDWIN)  :  Are  there  any  other  nominations? 
Is  it  your  pleasure  to  act  upon  the  report  of  this  Committee? 
The  Chair  hears  no  objection. 

(The  report  of  the  Committee  was  thereupon  unanimously 
adopted.) 

THE  CHAIRMAN  (BALDWIN):  The  report  is  adopted,  and  the 
gentlemen  named  are  declared  elected  to  the  respective  offices. 

THE  CHAIRMAN  (BALDWIN)  :  Is  it  desired  to  discuss  or  have 
presented  any  thoughts  upon  the  address  of  Mr.  Foulke? 


2Q2  JUDICIAL  SETTLEMENT 

MR.  MARBURG:  I  think  all  of  us,  Mr.  Chairman,  will  be  in- 
dined  to  agree  with  the  general  trend  of  the  argument  of  Mr. 
Foulke,  an  argument  which  he  has  advanced  so  ably  and  so  elo- 
quently. There  is  just  one  minor  point  which  it  seems  to  me 
important  to  criticize,  and  that  is  his  estimate  of  the  value  of 
neutralization. 

You  will  recall  the  fact  that  Switzerland  was  neutralized  by 
the  treaty  of  Vienna  in  1815  and  later  by  the  treaty  of  Paris  in 
the  same  year;  that  Belgium  was  neutralized  by  the  treaty  of 
London,  of  1832  confirmed  in  1839.  Is  not  the  temptation  on 
the  part  of  some  great  power  to  annex  part  or  all  of  the  territory 
of  these  small  powers  very  much  less  because  of  the  fact  that 
certain  great  nations  stand  ready  to  forbid  it  if  it  is  attempted? 
It  seems  to  me  hi  this  case,  as  in  many  others,  that  wisdom  ie 
a  voyage  of  discovery,  the  discovery  that  what  appears  simpls 
is  really  complex.  Such  bald  statements  as  that  neutralization 
is  good  or  that  neutralization  is  bad  should  be  modified.  Is 
it  not  wiser  to  take  some  such  position  as  this,  that  where  the 
internal  government  of  the  country  which  it  is  proposed  to  neu- 
tralize is  a  fairly  decent  government,  the  laws  just  and  justly 
administered,  that  it  is  quite  safe  in  respect  of  such  a  country — 
Switzerland  and  Belgium,  for  example — to  add  it  to  the  map  of 
peace,  and  put  it  in  our  pocket  as  so  much  definitively  added  to 
that  map  under  the  system  of  neutralization? 

MR.  :    There  is  a  single  line  of  thought  which  occurs 

in  Mr.  Foulke's  address  which  I  think  ought  to  be  discussed 
briefly.  That  is  the  discussion  whether  any  wars  have  arisen 
over  questions  of  honor;  and  the  query  naturally  follows,  is  honor 
a  question  that  can  be  settled  by  war?  I  remember  when  Lord 
Russell  came  to  this  country  in  1890,  he  made  the  same  excep- 
tion. I  asked  if  he  could  name  a  war  over  a  question  of  national 
honor,  and  he  did  name  one;  but  I  think  it  is  fair  to  say  there  has 
never  been  a  war  which  turned  purely  and  solely  on  a  question 


DISCUSSION  2Q3 

of  national  honor,  just  as  I  think  there  has  never  been  a  contro- 
versy between  states  brought  to  the  attention  of  the  Supreme 
Court  on  a  question  of  honor.  The  phrase  " a  question  of  honor" 
is  used  in  such  discussions  to  cover  a  multitude  of  sins,  and  I 
doubt  whether  it  is  at  all  worth  while  to  make  any  exception 
to  the  general  rule  that  all  controversies  between  nations  shall 
be  submitted  to  an  arbitral  court. 

There  is  another  suggestion  I  would  like  to  make  on  this  ques- 
tion of  neutralization.  My  friend,  Mr.  Foulke,  remarked  that 
Turkey  has  been  protected  by  the  powers  with  the  result  that 
Turkey  has  been  very  badly  governed.  You  must  bear  in  mind 
the  fact  that  the  object  of  that  step  was  rather  to  protect  Turkey 
against  invasion  by  her  big  robber  neighbor,  Russia.  The  impor- 
tant result  of  this  protection  is  that,  however  bad  the  affairs  of 
Turkey  may  have  been  hi  years  past,  she  has  now  thrown  off 
despotism  and  is  working  under  a  liberal  constitutional  govern- 
ment. What  would  have  been  her  fate  if  instead  of  being  pro- 
tected she  had  been  absorbed  by  Russia? 

THE  CHAIRMAN  (BALDWIN)  :  The  time  for  the  discussion  of  this 
paper  has  expired.  I  regret  that  our  time  is  so  limited  that  we 
must  cut  short  these  discussions  which  are  of  great  interest  to 
us  all. 

I  now  take  decided  pleasure  in  introducing  the  next  subject 
for  our  consideration,  "  Some  Reasons  why  Judicial  Methods  for 
Settlement  of  International  Disputes  are  Superior  to  Other  Meth- 
ods,." and  what  those  other  methods  may  be  we  will  hear  dis- 
cussed by  the  gentleman  whom  I  shall  now  have  the  pleasure  of 
introducing,  Rear  Admiral  Charles  H.  Stockton,  United  States 
Navy,  Retired,  now  President  of  George  Washington  University- 


294  JUDICIAL  SETTLEMENT 

SOME  REASONS  WHY  JUDICIAL  METHODS  FOR  SET- 
TLEMENT OF  INTERNATIONAL  DISPUTES  ARE 
SUPERIOR  TO  THE  OTHER  METHODS 

CHARLES  H.   STOCKTON 

Let  me  open  this  paper  by  giving,  in  a  rough  classification 
the  methods  other  than  judicial  for  the  settlement  of  international 
disputes : 

First,  and  most  crude  and  elementary,  war. 
Second,  diplomatic  methods  resulting  in  treaties  and  agree- 
ments. 

Third,  mediation. 

Fourth,  arbitration  by  conferences. 

Fifth,  arbitration  by  commission  or  before  a  court  of  arbitration. 

I  do  not  include  as  "other  methods"  measures  that  are  short 
of  war,  such  as  reprisals,  armed  demonstrations,  pacific  blockades 
or  partial  occupations  of  territory,  as  these  are  akin  to  war, 
being  the  use  or  threatened  use  of  warlike  appliances  against 
weaker  states.  They  are  methods  of  -intimidation,  pure,  sim- 
ple and  unveiled,  something  more  than  the  shaking  of  fists,  but 
less  than  a  seizure  by  the  throat.  The  best  that  can  be  said 
for  them  is  that  they  are  generally  unaccompanied  by  bloodshed 
and  at  times  remove  international  nuisances,  like  Castro  and 
Zelaya,  from  power. 

But  what  can  be  said  in  behalf  of  war  as  a  method  of  settle- 
ment of  international  disputes?  Nothing  except  that  it  does 
settle  them  in  one  way  or  the  other  and  for  a  time.  It  is  a  shame 
and  reproach  to  the  civilized  states  of  the  world  as  a  method  of 
settlement  and  yet  it  exists  in  defiance  of  the  sentiment  that 
ushered  in  the  Christian  era,  "and  on  earth  peace  among  men." 

But  the  advance  of  civilization  has  not  lessened  the  honor 
of  war.  It  is  the  last  resort  now,  as  it  was  in  less  civilized  times, 


STOCKTON  295 

for  the  settlement  of  international  disputes,  and  the  duty  still 
lies  before  us  to  seek  some  other  and  better  solution.  Here  I 
believe  we  must  build  upon  the  individual  and  through  him  reach 
the  governments  concerned.  Personally  I  believe  that  the  indi- 
vidual holds  a  higher  moral  sense  than  the  government.  An 
old  friend  of  mine,  whose  face  was  familiar  until  lately  hi  this 
city,  spoke  truly  when  he  said  that  if  certain  governments  were 
individuals  they  would  have  been  in  jail  long  ago.  If  we  are 
able  to  love  our  neighbors  as  ourselves  we  will  be  on  a  way 
more  certain  than  any  other  to  lead  to  peace,  but  human  nature, 
I  fear,  will  have  to  be  thus  regenerated  and  elevated  before  men 
cease  to  war. 

Let  us  consider  the  movements  to  abolish  or  reduce  arma- 
ments as  a  method  to  establish  peace.  The  existence  and  great 
growth  of  armaments  do  not  cause  war;  the  cause  lies  deeper. 
The  growth  of  armaments  is  not  the  disease  nor  the  cause  of  the 
disease;  it  is  but  a  symptom  of  the  disease.  As  a  late  writer  has 
well  expressed  the  matter — "wars  do  not  come  about  by  accident 
or  through  the  influence  of  stars  or  no  man  knows  how,  but 
always  in  the  last  resort  through  the  clash  of  human  wills." 
These  varying  wills  represent  feelings  that  pertain  to  the  nature 
of  the  individual,  to  certain  traits  that  when  transferred  from 
the  individual  to  the  mass  and  from  the  mass  to  those  exercising 
the  power  of  government,  become  not  purified,  but  intensified, 
as  the  responsibility  becomes  less  and  less  individual  and  more 
and  more  general  and  governmental.  As  a  result  fear,  pride, 
covetousness,  and  the  instinct  of  self-defense  causes  the  existence 
and  growth  of  armaments,  and  the  cost  of  armaments  causes 
combinations  and  alliances  on  the  part  of  those  who  seek  common 
objectives,  the  attainment  of  which  has  outgrown  the  purse  of 
the  single  nation. 

However  discouraging  this  may  seem,  I  firmly  believe  that 
methods  of  judicial  arbitration  which  as  they  become  more  and 
more  perfected,  appealing  to  the  sense  of  justice  and  love  of 


296  JUDICIAL   SETTLEMENT 

peace,  that  also  lies  in  some  shape  within  us  all,  will  overcome 
oui;  base  feelings  and  lead  us  with  a  steady  movement  forward 
and  upward  until  we  approach  sooner  or  later  that  millennium 
of  peace  to  be  sought  for  by  state  and  individual  alike.  It  may 
be  a  process  of  inching  along,  as  our  colored  brethren  say,  but 
the  Dogger  Bank  affair  shows  its  possibilities. 

We  cannot,  in  my  opinion,  arrive  at  a  short  cut  to  peace  by 
placing  the  sovereignty  of  the  world  in  the  hands  of  a  syndicate 
or  group  of  nations  and  compel  arbitration  by  force.  This 
would  make  for  the  supreme  power  of  one  or  two  of  the  more 
warlike  nations,  abolish  patriotism,  make  our  nationality  and 
flag  meaningless,  and  render  intolerable  our  existence  as  com- 
munities. Force  and  strength  would  resume  their  preeminence 
and  a  military  dictatorship  of  one  or  more  nations  would  follow. 
This  is  no  less  intolerable  than  an  individual  military  dictatorship. 

Let  us  take  up  next  the  question  of  the  use  of  diplomatic 
methods  as  compared  to  judicial  methods  for  the  settlement  of 
international  disputes.  Again  force  enters  by  veiled  threat, 
abrupt  refusals  and  even  the  display  of  the  shining  armor.  These 
can  and  have  been  included  within  the  scope  of  a  so-called  diplo- 
matic settlement  of  international  disputes.  Sometimes,  where 
the  contention  is  shown  to  be  actuated  by  justice  and  reason  or 
believed  to  be  weak,  compromises  may  result  as  the  easiest  way 
out  of  the  difficulty;  or  the  diplomatic  efforts  may  be  so  long 
delayed  that  popular  clamor,  or  intense  excitement  enter  into 
the  discussion  in  such  a  manner  as  to  cause  either  an  unsatis- 
factory and  irrational  agreement  or  a  cessation  of  effort  and  a 
recourse  to  war.  This  result  is  likely  to  occur  under  any  form 
of  government,  but  more  particularly  under  a  democratic  form 
of  government  with  clamor  of  people  and  press  and  intangible 
and  widely  distributed  responsibility.  No  incident  precipi- 
tated the  Spanish-American  War  more  than  the  destruction  of 
the  Maine.  Its  cause  and  the  reason  for  its  decisive  influence 
in  bringing  war  seem  to  be  as  mysterious  now  as  at  the  time  of 


STOCKTON  2Q7 

its  occurrence.  An  additional  reason  for  the  disadvantage  of 
diplomatic  methods  arises  from  the  less  exact  knowledge  by 
diplomatists  of  international  law  and  usages  than  is  found  with 
jurists  and  judges — the  decisive  human  elements  in  a  judicial 
arbitration. 

Mediation  by  a  state  or  a  sovereign  lacks  the  open  investi- 
gation and  careful  trial  to  be  found  under  the  judicial  system, 
and  the  award  consequently  lacks  weight.  Even  if  the  matter 
is  referred  to  publicists  or  competent  statesmen,  the  decision  is 
in  the  name  of  the  ruler,  its  reference  to  others  is  not  always 
known  or  even  obligatory  and  the  presentation  of  the  case  is  not 
in  evidence. 

As  to  arbitration  conferences,  they  lack  from  their  composi- 
tion the  security  and  reliance  upon  law  and  evidence  that  is 
inherent  hi  judicial  tribunals.  They  resemble  legislative  bodies 
rather  than  a  body  of  judges;  they  are  more  effective  in  law 
and  code-making  than  in  interpretation  and  application  of  law. 
They  are  also  subject  to  external  and  internal  coercion  and 
include  very  often  states  whose  obligations  to  other  states  may 
cause  them  to  yield  in  secondary  matters  or  even  in  primary  mat- 
ters from  a  sense  of  political  gratitude  or  dependence. 

Besides  the  failure  to  secure  primary  results  like  that  of  the 
first  and  Second  Hague  Conferences  to  secure  general  disarma- 
ments, they  often  fail  in  smaller  matters  which  unfit  them  to  be 
instruments  of  arbitration.  As  a  means  of  creating  codes  and 
conventions,  conferences  produce  happier  results.  The  Hague 
Conferences  created  the  two  conventions  on  the  pacific  settlement 
of  international  disputes  which  provide  means  of  judicial  settle- 
ment in  a  way  which  after  all  justifies  the  existence  of  the 
Conferences  as  well  as  the  time  and  expense  of  their  convening. 
In  Article  38  oft  his  convention  as  amended  in  1907  the  keynote  of 
this  method  of  the  settlement  is  sounded  in  the  following  words: 

"In  questions  of  a  legal  nature  and  especially  in  the  interpre- 
tation or  application  of  international  conventions,  arbitration  is 


298  JUDICIAL  SETTLEMENT 

recognized  by  the  contracting  powers  as  the  most  effective  and, 
at  the  same  time,  the  most  equitable  means  of  settling  disputes 
which  diplomacy  has  failed  to  settle." 

Consequently,  it  would  be  desirable  that,  in  disputes  regard- 
ing the  above  mentioned  questions,  the  contracting  powers  should, 
if  the  case  arise,  have  recourse  to  arbitration,  in  so  far  as  circum- 
stances permit.  Delegations  to  international  conferences,  of  a 
non-technical  nature  are  generally  composed  of  diplomatists,  ju- 
rists and  judges.  In  the  formation  of  judicial  tribunals  the  two 
latter  classes  alone  should  be  drawn  upon.  Even  then  comes 
the  troublesome  but  not  impossible  task  of  reconciling  the  Anglo- 
Saxon  with  the  continental  systems  of  law. 

We  have  on  the  one  hand  law  as  described  by  that  great  Amer- 
ican jurist,  Mr.  James  C.  Carter,  who  says  that  so  far  as  "social 
conduct  is  concerned  custom  is  not  simply  one  of  the  sources  of 
law  from  which  selections  may  be  made  and  converted  into  law 
by  the  independent  and  arbitrary  fiat  of  a  legislature  or  a  court, 
but  that  law,  with  the  narrow  exception  of  legislation,  is  custom 
and  like  custom  self -existing  and  irrepealable." 

This  expresses  very  largely  what  we  understand  to  be  also  a 
component  part  of  international  law.  With  the  addition  of 
codes,  crystallized  usages  and  continental  law  derived  from  the 
Roman  law,  it  forms  the  law  of  nations.  The  maritime  codes,  for 
instance,  began  in  the  eighth  century  with  the  Rhodian  laws,  con- 
tinuing with  the  Tabula  amalfitana  and  the  laws  of  Obron,  until  the 
Consolate  de  Mare  of  the  fourteenth  century  is  reached.  In  later 
times  in  the  nineteenth  and  twentieth  centuries  come  the  frag- 
mentary codes  beginning  with  the  Declaration  of  Paris,  reaching 
through  the  Conventions  of  Geneva  and  The  Hague  until  the  Dec- 
laration of  London.  The  tendency  is  then  in  International  Law 
to  codify  usages  and  certainly  no  great  difficulty  has  been  found  in 
our  own  Supreme  Court  in  trials  and  decisions  before  a  bench  in 
which  the  Civil  and  Common  Law  each  has  its  representatives. 

As  Thos.  J.  Lawrence  says:    "In  all  ordinary  matters  we  may 


DISCUSSION  299 

trust  ourselves  to  the  decisions  of  a  court  on  which  will  be  repre- 
sented not  only  British  common  sense  and  judicial  impartiality, 
but  German  learning,  American  fearlessness,  Austrian  sobriety, 
French  lucidity,  Italian  liberality,  Japanese  enterprise  and  Rus- 
sian conservatism,  together  with  other  qualities  brought  from 
States  which  at  present  take  a  second  rank  in  power,  but  not 
necessarily  in  thought  and  culture." 

I  will  close  this  brief  paper  with  another  quotation  from  a 
decision  made  by  the  great  English  judge,  Lord  Stowell,  in  a 
case  in  which  the  claims  of  Great  Britain  as  a  belligerent  came 
into  sharp  conflict  with  the  claims  of  Sweden  as  a  neutral.  He 
said:  "It  is  the  duty  of  the  person  who  sits  here:  to  determine 
this  question  exactly  as  he  would  determine  the  same  question 
if  sitting  at  Stockholm,  to  assert  no  pretensions  on  the  part  of 
Great  Britain  which  he  would  not  allow  to  Sweden  in  the  same 
circumstances;  and  to  impose  no  duties  on  Sweden,  as  a  neutral 
country,  which  he  would  not  admit  to  belong  to  Great  Britain 
in  the  same  character." 

With  judges  of  adequate  learing,  ability,  and  impartiality 
upon  international  tribunals,  can  we  not  confide  our  cases  to 
them  without  fear  of  the  result? 

MR.  VICTOR  HUGO  DURAS:  Mr.  Chairman,  I  think  we  all 
agree  with  Admiral  Stockton's  position.  To  attempt  the  actual 
abolition  of  war  would  be  an  impracticable  program;  society  has 
not  reached  perfection. 

The  propaganda  for  international  peace  has  gone  so  far  that 
now  it  is  possible  to  establish  a  court.  We  have  asked  for  an 
arbitral  court,  and  we  want  to  substitute  adjudication  for  arbi- 
tration. That  is  a  practical  program,  and  I  believe  that  all 
societies  are  absolutely  in  accord  in  respect  to  it. 

THE  CHAIRMAN  (BALDWIN)  :  The  next  paper  on  the  morning's 
program  is  "Between  Diplomacy  and  War,"  by  President  Harry 
Pratt  Judson  of  the  University  of  Chicago,  whom  I  now  take 
pleasure  in  presenting  to  you. 


300  JUDICIAL  SETTLEMENT 

FROM  DIPLOMACY  TO  WAR 

HARRY   PRATT   JUDSON 

In  the  conduct  of  international  relations  it  is  obvious  that 
differences  will  arise,  naturally  and  frequently,  as  occurs  with 
personal  relations  within  a  state.  These  differences  of  course 
have  a  very  wide  range.  They  relate  to  the  interests  of  indi- 
vidual citizens  or  subjects  of  the  respective  countries.  They 
relate  frequently  to  the  international  boundaries.  They  may 
involve  the  interpretation  of  international  agreements,  treaties 
or  conventions.  Inasmuch  as  there  is  no  common  sovereign 
over  the  nations  of  the  world  such  differences  must  be  settled 
directly  by  the  nations  concerned,  and  the  first  method  obviously 
is  the  ordinary  process  of  diplomacy.  The  foreign  offices  of  the 
powers  find  then:  raison  d'etre  hi  the  fact  of  their  constant  employ- 
ment in  arranging  such  matters.  Of  course  many  of  these  are 
comparatively  simple,  and  involve  therefore  no  great  difficulty 
in  their  settlement.  Others  are  more  complicated  and  require 
at  times  long  and  painstaking  negotiation.  The  diplomatic 
correspondence  of  any  of  the  foreign  offices  and  the  constantly 
growing  mass  of  treaties  throughout  the  world  bear  witness  to 
the  great  number  of  results  reached  by  this  process. 

At  times,  of  course,  when  relations  between  nations  are  strained 
and  when  it  becomes  extremely  difficult  to  reach  an  agreement, 
common  friends  interpose  their  mediation  in  a  friendly  way. 
This  may  sometimes  be  effective  in  bringing  discordant  powers 
together  and  reaching  results  which  could  not  be  reached  by 
direct  methods;  but,  after  all,  it  involves  in  the  end  the  same 
process  of  diplomatic  interchange. 

If  this  were  all — in  other  words,  if  the  differences  between 
national  states  could  all  be*  settled  by  diplomatic  means,  noth- 
ing more  need  be  said.  Unfortunately,  however,  there  occur 
circumstances  of  such  gravity  that  diplomatic  interchange  be- 


H.  P.  JUDSON  301 

comes  futile.  If  these  differences  are  of  sufficient  magnitude, 
or  at  all  events  if  their  relations  to  the  existing  circumstances  of 
national  conduct  are  sufficiently  provocative,  the  result  is  a 
settlement  by  physical  force.  This  has  been  commonly  called 
the  last  resort  of  nations.  It  should  be  that.  Whether  it  is  in 
fact,  depends  on  a  great  variety  of  circumstances.  We  know, 
unfortunately,  that  many  wars  have  occurred  which  patience, 
calmness,  and  far-sighted  wisdom  might  have  averted. 

However  that  may  be,  war  stands  at  the  other  end  of  the  scale 
in  which  diplomacy  is  the  beginning.  What  cannot  be  settled 
by  diplomacy  may  in  the  long  run  be  settled  by  war,  with  all  its 
attendant  calamities. 

It  is  wholly  unnecessary  in  this  gathering  to  dwell  on  the  dis- 
asters which  war  brings.  The  long  train  of  them,  destruction  of  life 
and  health,  destruction  of  property,  and  the  enormous  accumu- 
lation of  indebtedness,  draining  the  very  life-blood  of  nations, 
are  entirely  familiar  to  all.  Among  the  heaviest  burdens  resting 
on  the  world  to-day  is  the  two-fold  result  of  war, — first,  the  war 
debts;  second,  the  war  armaments,  which  of  course  have  their 
only  justification  as  being  in  the  nature  of  war  insurance.  Paying 
for  past  wars  and  paying  for  forefending  wars  in  the  future 
involves  therefore  an  outlay  which  some  of  us  think  might  more 
wisely  be  diverted  to  the  uses  of  peace,  whether  in  the  shape  of 
direct  national  expenditure  or  in  the  perhaps  quite  as  useful 
shape  of  relief  from  the  burden  of  taxation  for  the  individual. 

At  the  same  time,  while  force  as  a  means  of  settling  inter- 
national differences  seems  archaic,  it  should  be  remembered  that 
within  states  force  is  still  the  ultimate  means  of  preserving  public 
order.  There  are  still  tendencies  towards  disregard  for  law 
extending  even  to  anarchy  which  can  only  be  repressed  by  the 
firm  hand  of  the  police  power,  whether  exercised  through  the  or- 
dinary peace  officers  or  through  military  organization.  If  this  is 
true  within  states,  still  more  will  it  continue  for  a  long  time  to 
be  true  among  states.  It  can  hardly  be  expected,  therefore,  that 


302  JUDICIAL  SETTLEMENT 

the  good  order  of  the  world  can  be  maintained  permanently  with- 
out military  and  naval  armament  of  some  sort. 

Notwithstanding  the  probable  relative  permanence  of  arms  as 
an  international  police  power,  there  is  still  a  wide  field  for  those 
who  are  seeking  at  least  to  reduce  international  collisions  to  the 
narrowest  possible  limits.  It  is  to  this  end  that  arbitration  has 
been  sought  and  so  largely  extended.  There  can  be  no  doubt 
that  the  tendency  to  settle  national  dissensions  through  arbitral 
courts  and  the  adoption  of  more  definite  machinery  to  that  end 
have  been  one  of  the  most  important  advances  of  civilization  within 
recent  generations.  Situations  frequently  arise  in  which  nations 
that  differ  desire  to  reach  a  settlement.  This  desire  is  stronger 
than  the  willingness  to  engage  in  war.  At  the  same  time  a 
national  sense  of  honor,  rightly  or  wrongly,  will  often  make  it 
impossible  for  diplomacy  to  reach  an  agreement.  Under  these 
circumstances  nations  would  rather  have  the  matter  settled  in 
any  orderly  way  than  resort  to  arms.  It  is  as  an  outlet  for  such 
situations  that  arbitration  finds  its  most  important  justification. 
Of  course,  there  are  also  innumerable  other  matters  not  so  serious 
which  can  very  readily  be  settled  by  reference  to  such  courts. 

There  are,  however,  three  difficulties  with  courts  of  arbitra- 
tion which  are  quite  obvious.  One  is  what  is  at  least  commonly 
believed  to  be  the  tendency  of  arbitral  courts  to  effect  a  compro- 
mise. Compromises  are  often  a  wise  means  of  reaching  a  settle- 
ment. Diplomacy  often  leads  to  that  result,  as,  for  instance, 
in  the  boundary  treaty  between  the  United  States  and  Great 
Britain  in  1842,  and  again  in  1846.  It  may  be  that  a  court  or 
arbitrator  can  wisely  point  out  the  desirability  of  compromise  as 
a  reasonable  mode  of  settlement.  This  indeed  was  the  attitude 
taken  by  the  King  of  the  Netherlands  as  between  the  United 
States  and  Great  Britain  hi  1831.  Still,  if  a  question  is  referred 
to  an  arbitral  court  it  is  far  more  satisfactory  for  such  court  to 
settle  the  question  on  its  merits,  both  as  to  law  and  facts,  and 
not  seek  to  please  both  parties  by  in  fact  pleasing  neither.  It 


H.  P.  JTJDSON  303 

may  be  that  as  time  goes  on  and  arbitral  courts  come  more  fre- 
quently to  be  employed,  the  compromising  tendency  which  has 
at  times  been  seen  will  disappear.  That,  however,  is  at  least 
open  to  question. 

In  the  second  place,  an  arbitral  court  from  the  nature  of  its 
composition  refers  every  really  difficult  case  to  a  single  person  as 
an  umpire.  The  very  composition  of  the  court  contemplates 
the  possibility  of  the  court's  being  divided  equally,  aside  from 
the  umpire,  by  pre-determined  opinions.  This  throws  the  entire 
burden  in  such  cases  on  one  person,  and  makes  it  extremely 
difficult  to  secure  an  umpire  whose  decision  can  meet  unques- 
tioned respect.  The  arbitration  between  the  United  States  and 
Great  Britain  over  the  matter  of  compensation  relating  to  the 
Northeastern  Fisheries  is  a  single  illustration  of  this  inherent 
difficulty  in  arbitral  courts. 

In  the  third  place,  there  are  certain  matters  which  under  the 
present  conditions  of  international  policy  no  nation  will  refer 
voluntarily  to  a  court  of  arbitration.  These  are  especially 
matters  which  involve,  or  are  believed  to  involve,  the  national 
honor,  the  integrity  of  the  national  territory,  and  perhaps  great 
questions  of  national  ambition.  It  is  these  matters  about  which 
nations  are  still  willing  to  go  to  war  if  their  ends  cannot  be  attained 
by  peaceful  means.  There  remains,  therefore,  a  large  field  within 
which  the  system  of  arbitration  is  not  at  present  practicable. 

Of  course  the  ideal  settlement  of  differences  between  nations 
would  be  by  a  court  so  constituted  as  to  insure  adjudication  in 
accordance  with  law  and  equity,  and  whose  decision  should  be 
absolutely  binding  on  both  parties.  This  court,  if  it  could  be 
constituted,  would  not  be  open  to  the  objection  of  involving 
the  final  settlement  of  delicate  questions  by  a  single  umpire. 
It  would  not  involve  the  necessity  of  a  specific  treaty  for  the 
reference  of  disputes,  but  its  jurisdiction  and  its  procedure  would 
be  matters  of  course.  It  should  not  be  open  to  the  objection  of 
attempting  to  placate  both  parties  by  needless  compromises. 


304  JUDICIAL  SETTLEMENT 

It  should  have,  and  if  properly  constituted  and  duly  established 
would  have,  an  eye  single  to  the  broad  principles  of  law  and  justice 
on  which  all  courts  should  ultimately  rest. 

It  must  of  course  be  admitted  that  nations  will  hesitate  to 
establish  courts  of  this  character  and  to  refer  to  them  matters  of 
dispute  involving  wide  range.  At  the  same  time,  is  it  not  likely 
that  if  judicial  procedure  should  be  definitely  established  even 
within  a  narrow  range,  and  if  the  jurisdiction  of  these  courts 
should  be  defined  even  within  narrow  limits,  they  would  fully 
justify  themselves  in  practice  within  these  limits,  so  as  to  prove 
exceedingly  useful?  Again,  as  time  passes  and  nations  become 
accustomed  to  the  action  of  such  tribunals  of  justice,  and  as 
experience  demonstrates  the  fundamental  equity  involved  in 
their  transactions,  the  convenience  which  would  result  might 
equally  lead  to  a  process  of  broadening  jurisdictions,  until  the 
field  might  gradually  become  very  extensive.  It  is  a  matter 
of  common  experience  that  nations  of  late  have  been  content 
with  the  adjudication  of  arbitral  tribunals  on  matters  which  a 
century  ago  could  hardly  have  been  settled  at  all  unless  by  war. 
In  like  manner  it  seems  to  me  clear  that  in  the  progress  of  civili- 
zation these  judicial  tribunals,  once  established,  will  certainly 
find  their  justification  in  the  clear  conviction  among  nations  of 
the  world  that  the  interests  of  all  are  safe  in  the  hands  of  the 
judiciary.  After  all,  the  foundation  of  all  respect  for  law  or 
government  lies  in  the  confidence  that  such  law  and  such  govern- 
ment are  just  and  open  in  their  processes.  The  same  considera- 
tions must  apply  to  an  international  judicature.  In  certain 
countries  of  the  world  gentlemen  are  accustomed  to  settle  certain 
serious  disputes  by  a  court  of  honor.  May  it  not  be  as  easy  for 
nations  to  settle  disputes  of  the  same  character,  involving  similar 
delicate  questions  of  international  honor,  by  a  court  which  would 
pass  just  as  clearly  and  just  as  finally  on  the  questions  as  a  court 
of  honor  among  individuals? 

So  far  as  protecting  the  integrity  of  national  territory  is  con- 


H.  P.  JUDSON  305 

cerned,  it  can  hardly  be  expected  that  for  many  years  to  come 
disputes  of  a  grave  character  nations  will  be  willing  to  refer  to 
any  court,  but  it  seems  to  me  far  from  impossible  that  courts 
may  win  so  much  of  the  confidence  of  nations  that  in  time  even 
such  questions  may  be  submitted  to  their  jurisdiction. 

All  this  will  necessarily  involve  a  slow  process.  It  cannot  be 
constituted  in  a  moment;  it  must  be  begun  perhaps  hi  a  small 
way,  and  must  of  course  develop  through  the  natural  evolution 
of  time.  Time  and  patience  work  wonders. 

There  remain  of  course  questions  involving  the  independence 
and  ambitions  of  the  nations  themselves.  Of  course  independence, 
which  involves  the  very  existence  of  a  nation,  could  hardly  be 
settled  by  an  international  tribunal,  unless  it  should  be  a  case  for 
the  exercise  of  international  police  power.  If,  for  instance,  a 
given  nation  should  hi  fact  prove  to  be  so  unruly,  so  anti-social 
and  so  injurious  to  international  order  that  its  existence  ought 
no  longer  to  be  tolerated,  the  powers,  acting  together  on  the 
mandate  of  an  international  judicial  tribunal  rather  than  on  the 
mandate  or  agreement  of  the  foreign  offices,  might  decree  the 
extinction  of  the  national  life  of  the  state  in  question,  just  as 
the  criminal  court  within  a  state  may  decree  the  extinction  of  the 
life  of  a  malefactor.  It  may  easily  be  that  such  a  case  would 
never  happen.  At  the  same  time  it  is  conceivable,  and,  should 
it  occur,  would  it  not  rest  on  a  far  sounder  basis  than  trans- 
actions which  have  occurred  in  the  past,  and  which,  whatever 
their  justification  in  point  of  equity,  after  all  have  had  the  ap- 
pearance of  simple  international  spoh'ation? 

So  far  as  international  ambitions  are  concerned,  these  of  course 
are  matters  which  would  not  be  likely  to  come  under  the  cognizance 
of  an  international  court  of  justice.  But  if  all  other  matters  are 
gradually  eliminated,  and  placed  under  judicial  procedure,  would 
it  not  be  plain  that  the  international  processes  which  now  often 
have  the  cloak  of  magnanimity  and  of  the  enforcement  of  justice, 
but  which  in  fact  have  lurking  under  them  simply  ambition  for 


306  JUDICIAL  SETTLEMENT 

increase  in  territory  or  in  wealth  by  physical  force,  would  be  so 
obviously  of  the  latter  class  that  they  could  not  be  defended  at 
the  bar  of  public  opinion?  If  international  spoliation  is  laid 
bare  as  spoliation  and  nothing  else,  would  not  nations  hesitate  to 
use  extreme  processes  for  the  gratification  of  their  ambitions? 
Too  much  must  not  be  expected  from  any  international  pro- 
cesses within  a  limited  period.  At  the  same  time  if  seems  tome 
plain  that,  following  the  successful  establishment  of  arbitration, 
the  next  step  should  be  the  establishment  of  a  definite  inter- 
national judicature;  that  the  jurisdiction  of  this  tribunal  should 
be  made  as  extensive  as  the  nations  may  at  the  outset  consent; 
and  that  to  the  sound  methods  of  such  court  and  to  its  ascertained 
probity  and  wisdom  may  safely  be  entrusted  its  development 
along  the  lines  of  winning  gradually  the  confidence  of  the  world 
and  therefore  a  wider  and  wider  jurisdiction.  If  this  supposition 
is  correct  it  would  seem  plain  that  another  step  and  a  long  one 
may  be  taken  in  the  direction  of  eliminating  physical  force  as  a 
means  of  settling  international  disputes. 

MR.  HILARY  A.  HERBERT:  Mr.  Chairman,  the  paper  just 
read  has  suggested  to  me  a  thought  arising  from  my  own  experience. 
It  seems  to  me  that  instead  of  leaving  open  for  future  consideration, 
as  suggested  by  the  last  speaker,  the  subject  of  whether  ques- 
tions of  honor  can  be  properly  settled  by  a  court,  this  Association 
ought  to  put  in  the  very  forefront  of  its  contentions  the  idea  that 
questions  of  honor  ought  to  be  and  can  be  properly  submitted  to 
a  court. 

I  am  a  Southerner.  During  my  long  life  I  have  seen  the  duel 
common  in  Southern  States  and  I  have  seen  it  fall  into  disuse. 
Public  opinion  gradually  compelled  men  to  refer  their  disputes 
to  boards  of  honor.  I  myself  have  sat  upon  such  a  board,  and 
I  have  seen  many  of  them.  These  boards  always  take  up  the 
question  as  to  which  party  is  to  blame,  and  I  have  never  yet 
in  a  single  instance  seen  the  finding  of  the  board  set  aside.  The 


DISCUSSION  307 

consequence  is  that  to-day  there  has  been  complete  disarmament, 
you  might  say,  in  the  South.  I  should  not  know  where  to  go  to 
find  a  set  of  duelling  pistols.  The  final  result  is  that  the  duel  has 
fallen  into  such  disrepute  that  it  is  no  longer  necessary  even  to 
resort  to  boards  of  honor  to  avoid  it.  I  have  not  known  of  one 
in  the  South  now  for  many  years. 

MR.  WILLIAM  RENWICK  RTDDELL:  Mr.  Chairman,  there  are 
just  two  or  three  thoughts  to  which  I  would  like  to  give  utterance 
before  this  meeting  closes. 

We  have  been  talking  a  great  deal  about  settling  questions  by 
war.  I  have  been  thinking  it  over,  and  I  do  not  know  of  more 
than  two  or  three  wars  in  the  whole  of  history  that  have  ever 
settled  anything.  Take  such  as  have  happened  during  my  own 
life.  The  first  war  I  recall  is  the  Crimean  War,  which  made  a 
great  sensation  throughout  the  world.  It  was  supposed  to  have 
settled  for  good  the  position  of  Russia. 

Then  we  have  the  Franco-German  War.  That  is  supposed 
to  have  settled  the  possession  of  Alsace-Lorraine.  Has  it? 
Let  any  person  go  to  Paris,  and  leave  the  main  streets  as  I  have, 
and  walk  about  among  the  ordinary  people,  and  he  will  know 
whether  the  possession  of  Alsace-Lorraine  is  settled. 

The  Revolutionary  War  demonstrated  the  fact  that  English- 
men, whether  they  are  upon  this  side  of  the  Atlantic  or  the  other, 
are  going  to  govern  themselves  and  will  not  submit  to  anybody. 
That  question  has  been  learned  once  and  for  all,  and  Canada  and 
Australia  and  South  Africa  and  New  Zealand  conquered  on  the 
Battle  field  of  Bunker  Hill  just  as  did  the  American  Colonies. 

The  American  Constitution  was  interpreted — I  use  the  word 
advisedly — by  the  great  Civil  War,  and  I  suppose  that  question 
is  now  settled  for  all  time.  Has  there  ever  been  any  other  war 
than  those  two,  the  Revolutionary  War  and  the  great  Civil  War  on 
this  Continent,  that  has  settled  anything?  What  did  the  Mexican 
War  settle?  Did  it  settle  anything?  What  was  settled  by  the 


308  JUDICIAL   SETTLEMENT 

War  of  1812 — anything?  The  Mexican  territory,  if  it  was 
Mexican  territory,  which  came  into  the  United  States  as  a  conse- 
quence or  as  a  cause  of  the  War  with  Mexico,  was  part  of  the 
United  States  long  before  that  war  hi  fact  and  in  sentiment  and 
in  reality,  and  was  bound  to  be  a  part  of  these  great  states  whether 
that  war  ever  took  place  or  not. 

The  War  of  1812  we  have  heard  discussed  by  Mr.  Foster,  and 
he  pointed  out  that  the  alleged  causes  of  the  war,  if  they  did  exist, 
might  have  been  removed  by  diplomacy,  and  might  have  been 
removed  because  Great  Britain  was  coming  to  her  senses.  Every- 
body knows  that  during  the  Napoleonic  period  she  was  going 
around  with  a  chip  on  her  shoulder  because  she  had  to  have  a 
chip  on  her  shoulder.  She  was  fighting  everybody  because  she 
had  to  fight  everybody,  and  when  she  found  the  American  nation 
desirous  of  war  with  her,  she  was  quite  willing  to  welcome  another 
antagonist. 

When  we  talk  about  war  settling  anything,  let  us  see  if  it 
really  does  settle  anything. 

Then  comes  the  other  matter  to  which  I  desire  to  refer, 
which  is  this :  One  of  our  friends  has  said  truly  that  international 
law  is  a  thing  of  shreds  and  patches.  What  is  municipal  law? 
The  revised  statutes  of  Ontario,  the  legislation  of  the  Province 
of  Ontario  with  which  I  am  best  acquainted,  is  found  in  two 
moderately  sized  books.  That  is  not  all  the  law  of  Ontario.  I 
would  hate  to  think  of  the  number  of  thousands  of  volumes  of 
law  which  we  have  hi  our  library  there,  and  I  am  perfectly  certain, 
while  we  may  have  ten  thousand  or  twenty  thousand  volumes 
containing  to  a  certain  extent  the  law  of  the  Province  of  Ontario, 
100,000  volumes  would  not  contain  all  the  law.  It  is  true  the 
written  law  is  hi  small  compass  and  is  a  matter  of  shreds  and 
patches.  Some  nations  who  believe  that  all  law  can  be  codified, 
perhaps  may  say  that  out  international  law  is  fragmentary,  but 
no  people  whose  law  is  based  upon  the  common  law  of  England, 
no  people  who  know  that  their  law  is  law  which  existed  for 


DISCUSSION  309 

hundreds  of  years,  implicity  if  not  explicity,  trouble  themselves 
about  the  amount  of  law  which  is  reduced  to  black  and  white. 

International  law  must  necessarily  be  based  upon  the  broad 
principles  of  the  common  law  of  England,  because  the  broad 
principles  of  the  common  law  of  England  are  principles  of  right 
and  justice,  and  when  we  talk  about  the  difference  between  the 
civil  law  and  the  common  law  of  England,  I  agree  with  you — , 
those  of  you  who  think  there  is  a  very  great  difference, — that  on 
the  surface  there  is  considerable  difference  between  the  Roman 
law  and  the  common  law  of  England.  We  approach  the  common 
law  by  the  door  of  the  civil  law.  I  was  for  years  a  student  of  the 
civil  law  before  I  read  any  common  law.  I  am  perfectly  safe  in 
saying  that  in  nine  hundred  and  ninety-nine  cases  out  of  a 
thousand  the  decisions,  based  upon  principles, — outside  of  the 
limit  of  petty  technicalities, — will  be  precisely  the  same  whether 
you  take  the  principles  from  Justinian,  or  whether  you  take  the 
principles  from  Blackstone.  There  is  no  great  difference  between 
the  laws  of  the  civilized  nations  if  you  leave  aside  the  accidents. 

The  other  thought  is  this:  Dr.  Eliot  has  spoken  in  high  terms, 
but  none  too  high  terms,  of  the  Canadian  Act  of  Parliament  for 
settlement  of  disputes  between  masters  and  servants.  He  told 
you  some  of  its  provisions.  But  he  did  not  tell  you  that  that  Act 
was  largely  the  product,  not  of  the  gentleman  whose  name  is 
attached  to  it,  but  of  the  then  deputy  minister  of  labor,  a  graduate 
of  Harvard  University,  whom  we  had  given  all  the  education  we 
could  in  the  University  of  Toronto  and  then  sent  to  Harvard; 
and  a  great  many  of  the  thoughts  which  are  incorporated  there 
in  black  and  white  I  have  no  doubt  came  from  Harvard  University 
and  I  dare  say  some  of  them  at  least  from  our  friend  Dr.  Eliot. 

I  cannot  sit  down  without  expressing  the  gratitude  which  we 
in  Canada,  in  Ontario,  in  the  University  of  Ontario,  owe  to  Dr. 
Eliot  and  his  magnificent  set  of  educators  at  Harvard. 


310  JUDICIAL   SETTLEMENT 

MRS.  BELVA  LOCKWOOD:  Mr.  Chairman,  before  the  meeting 
adjourns,  I  wish  to  comment  on  a  thought  advanced  here  for 
the  first  time  by  Mr.  Foster,  and  then  by  the  succeeding  speaker, 
the  point  as  to  whether  the  judgment  of  the  international  court 
which  it  is  proposed  to  establish  can  be  enforced.  I  wish  to  state 
one  precedent,  without  criticising  the  speaker,  Mr.  Foulke.  I 
agree,  however,  with  the  criticism  of  my  friend  Mr.  Marburg 
with  reference  to  it. 

The  thought  is  that  wre  have  an  important  and  memorable 
precedent  where  arbitration  was  enforced,  and  that  was  in  the 
treaty  covering  the  matter  of  the  neutralization  of  Belgium. 
When  the  old  King  of  the  Netherlands  refused  to  let  the|  Belgians 
go,  after,  with  his  iron  rule,  he  had  crippled  the  commerce  and 
nearly  destroyed  the  manufactures  of  the  country,  the  Belgians 
appealed  to  the  powers.  The  powers  agreed  to  take  up  the  case, 
and  under  the  supervision  of  Lord  Palmerston,  the  protocol, 
with  twenty-one  different  sections,  was  drawn  up,  and  England 
and  France  and  Russia  and  Germany  and  Italy  signed  the  proto- 
col. The  old  King  of  the  Netherlands  still  refused  to  let  the 
people  go.  He  said  that  Russia  and  France  had  not  yet  con- 
firmed the  protocol,  although  those  powers  had  signed  it.  Finally 
public  opinion  forced  the  King  of  the  Netherlands  to  let  the  Belgians 
go.  Belgium  has  been  neutralized  since  that  time,  and  the  Belgian 
people  are  the  most  successful  manufacturers  of  the  world  and 
did  have  at  one  time  the  best  scholars,  and  will  again;  a  very 
prosperous  and  industrious  people,  showing  something  of  the 
effect  of  neutralization. 

MIRZA  ALI  KULI  KHAN:  Mr.  Chairman,  allow  me  to  add  one 
remark  to  all  these  beautiful  things  that  have  been  said. 

To  begin,  I  want  to  thank  the  representatives  and  members 
of  this  conference  here  present  for  their  kind  invitation  extended 
to  me.  As  this  is  the  last  session  of  the  Conference  I  thought 
to  add  one  word.  I  have  heard  the  matter  of  preparedness  for 


DISCUSSION  311 

war  referred  to  by  a  few  of  the  speakers  here  as  being  one  of  the 
practical  means  of  effecting  and  maintaining  peace  among  nations. 
While  I  am  not  permitted  to  assert  anything  except  by  way  of 
generalizing,  without  reference  to  any  particular  party  or  parties, 
I  wish  to  say  that  there  is  a  moral  issue  involved  in  this  question. 
Those  who  say  that  preparedness  for  war  insures  peace,  point 
to  certain  facts  which,  on  the  surface  seem  to  substantiate  that 
claim.  But  the  standard  held  and  advocated  by  the  peace 
workers  of  the  twentieth  century  should  be  and  must  be  nobler 
than  that  which  justifies  compromise  or  temporary  makeshift. 
I  mean  this:  Whatever  is  being  accomplished  in  this  great  day 
by  humanity  must  be  accomplished  through  moral,  through 
intrinsically  dynamic  means,  not  through  negative  means,  such 
as  the  maintenance  of  armaments  as  the  instruments  of  peace. 
That  is  a  negative  means  to  a  noble  end.  Centuries  have  passed 
since  the  period  when  that  attitude  was  accepted  as  the  ideal 
That  which  is  essential  to  peace  is  to  convert  the  people  of  the 
world  to  the  ideal  of  peace  by  creating  an  atmosphere  of  peace 
throughout  the  world;  for  in  that  atmosphere  all  breathing  would 
imbibe  the  spirit  which  alone  can  be  instrumental  in  effecting 
permanent  peace. 

Another  word  in  this  connection:  We  should  not  think  that 
only  that  which  is  surely  and  positively  practical  can  accomplish 
peace.  There  are  certain  ideals  which  can  be  executed  through 
what  we  people  of  this  century  call  practical  means.  But  let 
us  remember  that  while  it  took  milleniums  to  establish  what  is 
called  civilization  and  empires  upon  the  idea  of  might,  it  should 
at  least  take  some  centuries  before  that  fundamental  basis  of 
might  can  be  supplanted  by  the  fundamental  basis  of  right. 
So  you  workers  for  the  cause  of  peace,  who  are  looked  upon  by  a 
great  many  so-called  practical  men  of  the  world  as  dreamers  and 
idle  speechmakers,  should  not  be  discouraged.  The  greatest 
utterances  which  have  been  made  since  the  dawn  of  history, 
utterances  that  are  responsible  for  the  solidarity  of  the  human 


312  JUDICIAL   SETTLEMENT 

race,  were  made  by  men  who  were  looked  upon  by  the  masters 
and  great  leaders  and  scholars,  as  being  visionary  dreamers  of 
idle  dreams.  Consequently,  now  that  it  is  established  as  a 
fact  that  positive  action,  not  compromise,  will  accomplish  peace, 
it  is  necessary  to  use  the  two  powerful  means  which  this  great 
conference  has  been  advocating  for  bringing  about  permanent 
peace.  One  of  them  is  the  establishment  of  a  permanent  court, 
composed  of  permanent  judges  appointed  by  the  great  nations 
of  the  world.  The  second  is  the  introduction  into  all  the  schools 
of  the  world  of  those  principles  which,  if  imbibed  by  people  from 
their  childhood,  would  develop  those  children  into  men  who 
would  stand  for  no  other  than  a  peaceful  adjustment  of  dif- 
ferences, for  that  peaceful  conduct  of  the  world's  affairs  which 
simply  ascribes  to  the  man  of  intelligence  a  consciousness  of  the 
intrinsic  comity  and  unity  of  humanity. 

THE  CHAIRMAN  (BALDWIN)  :  It  is  very  inspiring  to  hear  such 
words  of  sympathy  from  Persia  and  from  one  representing  her 
officially  at  our  capital  as  charge  d'affaires. 

Speaking  of  the  peace  workers  of  the  Twentieth  Century,  we 
are  reminded  that  two  of  the  greatest  peace  workers  of  the 
century  have  been  members  of  this  Conference,  men  whose 
means  have  enabled  them  to  make  their  philanthropy  very  practi- 
cal; for  after  all,  in  any  great  movement  of  this  sort  the  use  of 
money  is  needed.  It  is  needed  to  extend  the  propaganda  of  this 
society,  of  this  movement,  of  the  world-wide  movement,  for  the 
establishment  of  an  international  court  of  justice.  We  heard  from 
one  of  those  men,  Mr.  Carnegie,  the  other  night.  We  will  now  hear 
from  him  who  expects  to  consecrate  his  great  fortune  to  the  cause 
of  peace,  Mr.  Edwin  Ginn,  of  Boston. 


GINN  313 

SOME  OF  THE  THINGS  THAT  MUST  BE  DONE  IN 
ORDER  TO  SECURE  A  PERMANENT  JUDICIAL 
COURT  FOR  THE  SETTLEMENT  OF  INTERNA- 
TIONAL DIFFICULTIES 

EDWIN    GINN 

When  a  year  ago  we  published  our  plan  for  an  International 
School  of  Peace,  it  was  very  well  received  far  and  near,  and  there 
was  a  call  for  more  information,  but  at  that  time  it  was  impos- 
sible to  comply  with  this  request. 

The  plan  of  our  organization  is  familiar  to  you  all.  It  is 
similar  to  the  ordinary  college,  calling  for  a  board  of  directors 
that  will  correspond  to  the  faculty  of  a  college,  a  board  of  trus- 
tees, and  an  advisory  council;  and  before  giving  out  anything 
further  to  the  public  it  was  necessary  to  select  the  men  for  these 
boards.  That  meant  a  long,  careful  search.  The  first  qualifi- 
cation in  the  persons  sought  was  a  strong  desire  to  devote  them- 
selves to  the  cause.  The  next  was  experience  in  international 
affairs  and  the  ability  to  labor  successfully  in  this  field. 

It  is  very  gratifying  to  me  at  this  tune  to  be  able  to  say  that 
we  have  secured  just  the  people  we  started  out  to  find.  They 
have  not  only  accepted  the  call,  but  each  has  expressed  a  desire 
to  take  up  this  work  as  the  one  thing  in  the  world  to  which  he 
would  like  most  of  all  to  consecrate  himself.  By  this  I  do  not 
mean  that  we  are  able  to  secure  the  services  of  all  these  good 
people  at  once  and  consequently  it  may  not  be  possible  to  com- 
plete our  organization  immediately.  It  will  take  months  and 
perhaps  years  in  some  cases  for  our  directors  to  disengage  them- 
selves from  the  important  work  they  now  have  in  hand,  and  it  is 
important  I  admit,  but  I  cannot  help  feeling  (and  I  think 
they  are  all  coming  to  share  this  feeling  with  me)  that  however 
important  their  present  duties  are,  they  affect  but  a  portion  of 
the  people,  whereas  this  work  which  I  am  asking  them  to  do  will 


314  JUDICIAL  SETTLEMENT 

benefit  all  classes  and  conditions  of  men  the  world  over,  and  as 
the  sphere  of  their  influence  broadens  they  will  render  a  corre- 
spondingly greater  service  to  the  human  race. 

Some  of  our  directors  feel  that  their  work  will  require  so  much 
travelling  that  it  will  not  be  necessary  for  them  to  be  located  at 
headquarters.  I  do  not  sympathize  with  them  in  this.  If  this 
work  is  to  be  entered  upon  in  the  most  effective  way  possible, 
there  must  be  concentration  of  effort  and  the  workers  must  be 
in  close  touch,  studying  our  problems  together,  and  working 
them  out  together,  for  we  shall  find  that  the  work  in  hand  will 
require  their  undivided  attention.  It  is  perhaps  the  most  com- 
prehensive undertaking  in  the  whole  world  and  we  shall  need 
not  simply  a  portion  of  their  time,  but  all  of  it,  if  we  expect  to 
accomplish  what  we  have  planned  to  do. 

HEADQUARTERS 

Our  headquarters  will  require  no  costly  buildings.  There  are 
a  plenty  already  in  existence  that  can  be  rented  at  moderate 
expense.  Our  funds  must  be  husbanded  very  carefully  for  the 
effective,  live  work  of  able  men  and  women.  In  carrying  on 
this  work  we  shall  have  no  school  buildings  to  erect.  They  are 
already  constructed.  We  have  not  to  spend  our  money  in 
church  edifices.  They  already  exist.  We  have  not  to  spend  our 
money  in  buildings  for  the  press  of  the  world.  They  have  their 
own.  We  have  only  to  make  use  of  the  buildings  already  erected 
and  the  various  organizations  and  societies  already  in  operation 
to  help  us  carry  out  our  plans. 

TRUSTEES 

For  Trustees  we  have  been  able  to  secure  men  occupying, 
many  of  them,  executive  positions  at  the  head  of  leading  colleges 
and  prominent  business  men. 


GESTN  316 

BOARD  OF  DIRECTORS 

Our  board  of  directors  are  all  men  of  marked  individuality. 
That  is  the  kind  of  talent  necessary  for  any  great  work,  but  each 
of  them  will  find  himself  helped  by  contact  with  every  other. 
It  is  the  merging  together  of  these  strong  qualities  that  we  are 
aiming  at,  rather  than  the  domination  of  any  single  personality. 
We  want  the  greatest  freedom  in  carrying  out  individual  thought 
and  action,  consistent  with  an  all-round  development  of  the  work 
in  its  broadest  scope.  Every  one  will  add  something  of  superior 
worth  to  every  other.  It  has  been  our  aim  to  specify  only  the 
general  direction  which  our  work  should  take,  leaving  to  the 
officers  which  should  be  chosen,  the  formulation  of  details. 

In  all  of  this  work  there  will  be  more  or  less  of  overlapping 
and  duplication.  In  fact  each  man  will  find  himself  not  only 
working  along  lines  parallel  to  another's,  but  often  crossing  those 
lines.  In  a  good  cause,  however,  there  can  be  no  jealousies,  no 
undue  rivalry.  Plato  rightly  said  that  whoever  is  doing  an 
unselfish  work  welcomes  help  from  all  quarters.  There  cannot 
be  too  many  laborers  in  the  field.  It  is  the  selfish  man  who  has 
his  own  aims  to  further  who  opposes  what  another  is  doing  along 
lines  similar  to  his  own.  Each  and  every  one  of  us  will  have  his 
individual  ideas  as  to  the  best  way  of  doing  things,  but  I  think  we 
shall  all  come  to  recognize  the  value  of  each  other  as  we  are  all 
striving  for  the  same  noble  end. 

EXPENSES 

One  of  our  first  duties  will  be  a  systematic  effort  to  raise  funds 
in  addition  to  those  which  I  can  supply.  Our  funds  are  so  limited 
that  we  must  not  spend  an  unnecessary  dollar.  Our  organiza- 
tion must  be  carried  on  in  the  most  economic  and  business-like 
way  possible.  The  salaries  must  of  necessity  be  low.  It  isn't 
in  any  way  a  money-making  scheme  and  no  one  engaging  in  it 


316  JUDICIAL   SETTLEMENT 

should  think  of  it  as  such.  I  want  all  our  helpers  paid  sufficiently 
to  support  them  comfortably  for  a  long  term  of  years,  but  that  is 
all  we  can  hope  for,  and  in  contracting  for  a  longer  term  of  service 
than  is  usual,  the  deficiency  in  salary  will  partly  be  made  good. 
I  know  there  is  a  feeling  on  the  part  of  all  who  have  entered  the 
service  that  they  do  not  wish  or  expect  the  full  value  of  their 
time  in  money.  They  desire  to  give  themselves  as  much  as  is 
consistent  with  their  circumstances,  free  of  charge. 

Heretofore  very  largely  the  peace  forces  have  acted  on  the 
plan  that  a  few  generous  persons  would  support  the  work.  They 
have  not  impresssed  the  people  sufficiently  with  the  idea  that  it  is 
their  work  and  that  it  will  never  succeed  as  it  should  with  an 
indefinite  and  uncertain  source  of  supply;  that  each  and  every 
one  must  do  his  share,  either  in  money  or  in  service,  if  the  de- 
sired ends  are  ever  to  be  attained.  To  bring  people  to  this  belief 
is,  as  I  said  above,  one  of  our  important  missions. 

PRESS 

In  accordance  with  my  original  plan,  I  feel  that  we  should  make 
use  of  the  press  of  the  world,  keeping  in  close  touch  with  it  and 
sending  out  broadsides  at  the  psychological  moment,  putting 
in  the  right  word  at  the  right  time.  This  will  be  a  most  effective 
department  in  the  hands  of  one  who  has  shown  great  capacity, — 
James  A.  Macdonald  of  Toronto. 

The  press  probably  exercises  the  greatest  power  over  the 
destinies  of  men.  Is  it  wise  to  leave  such  a  power  in  the  hands  of 
undisciplined  men, — men  who  have  not  been  given  any  special 
training  for  the  work?  In  every  other  branch  of  educational 
development  the  teachers  and  directors  of  affairs  have  to  serve 
a  long  apprenticeship, — for  the  ministry,  for  the  schools,  for  war 
in  the  naval  and  military  academies,  for  scientific  work,  for  agri- 
cultural pursuits;  in  fact  every  other  kind  of  work  of  importance 
demands  from  those  who  are  to  enter  upon  it  careful  preparation. 


GINN  317 

But  here  is  one  of  the  greatest  powers  in  the  world  for  which  there 
is  no  training  required  to  fit  a  person  to  engage  in  it.  Men  come 
to  it  from  the  various  callings  of  life,  well  fitted  or  ill  fitted  as 
may  happen.  It  seems  to  me  of  the  utmost  importance  that 
there  should  be  a  branch  of  our  institution  devoted  to  the  train- 
ing of  young  men  for  this  profession, — men  who  have  the  special 
qualifications  necessary  to  make  the  press  of  the  world  a  strong 
influence  for  good. 

I  am  well  aware  that  even  the  best  of  training  in  any  kind  of 
work  will  not  insure  success;  but,  other  things  being  equal,  given 
the  right  capacity,  that  training  will  make  success  doubly  sure. 
Until  some  such  school  has  been  set  in  motion  the  best  we  can 
do  will  be  for  our  director  of  the  press  bureau  to  get  in  close  touch 
with  the  leading  editors  of  the  world  and  impress  upon  them  the 
importance  of  their  high  calling,  both  by  direct  personal  com- 
munication and  by  correspondence.  Here  is  a  very  large  and 
important  sphere  of  action,  which  will  demand  a  liberal  expendi- 
ture of  money. 

STUDY  OF  HISTORY 

There  is  another  very  important  matter  to  be  considered,  that 
of  reducing  to  a  considerable  extent  the  space  given  in  the  edu- 
cation of  the  youth  of  to-day  to  warlike  achievement.  Is  it  sur- 
prising that  our  children  should  receive  the  impression  that  war 
has  contributed  largely  to  the  development  of  mankind  when  so 
large  a  part  of  our  histories  is  devoted  to  the  details  of  the  battle- 
field and  so  little  to  the  real  things  of  life,— the  things  that  are 
developing  the  nations?  We  desire  to  have  it  made  very  plain 
to  what  extent  civilization  has  been  hindered  by  these  misfor- 
tunes and  that  the  study  of  history  should  dwell  largely  upon  the 
real  things  that  have  helped  in  the  development  of  mankind,— 
the  peaceful  pursuits  of  life, — agriculture,  trade,  commerce  of 
all  kinds,  schools,  science.  These  are  the  real  things  that  the 
children  should  give  their  attention  to  and  not  the  misfortunes 
of  the  nations. 


318  JUDICIAL  SETTLEMENT 

LIMITED    SCOPE 

There  has  been  a  desire  on  the  part  of  some  to  limit  the  scope 
of  this  organization,  confining  it  purely  to  the  educational  work 
already  mentioned, — the  schools,  the  churches,  and  the  press; 
but  my  desire  is  that  this  school  should  aim  to  educate  the  people 
in  all  directions.  We  particularly  wish  not  alone  to  educate 
them  along  the  permanent  lines  above  referred  to,  but  upon  tem- 
porary economic  and  political  lines. 

REDUCTION  OF  ARMAMENTS 

We  need  carefully  to  examine  the  position  taken  by  a  large 
part  of  the  world  that  a  large  navy  is  an  essential  to  help  build 
up  and  protect  a  large  commerce.  This  illusion  has  been  dis- 
sipated by  Norman  Angell  in  his  new  book  The  Great  Illusion. 
Among  other  facts  he  mentions  the  mercantile  fleet  of  Norway 
which  is  larger  in  proportion  to  the  population  than  that  of  Great 
Britain  and  even  the  British  Colonies  in  Canada  are  losing  a  part 
of  their  trade  to  Swiss  and  Belgian  merchants. 

Nor  are  these  large  armaments  needed  for  the  security  and 
happiness  of  a  small  nation.  For  example,  the  3  per  cent  bonds  of 
Belgium  are  quoted  at  96,  while  those  of  the  fierce,  all-powerful, 
warlike  nations,  such  as  Germany,  for  instance,  are  quoted  at  82. 
Norway's  3^'s  are  quoted  at  102,  while  Russia's  3^'s  are  quoted 
at  81.  The  same  relative  disproportion  is  true  of  the  private 
individuals  in  the  nations  as  of  the  states.  It  is  reported  that 
in  the  small  states  the  individual  lives  much  more  comfortably 
than  in  the  large  one,  for  the  reason  that  his  burdens  of  taxation 
are  not  as  heavy  on  account  of  military  expenses.  To  quote  from 
The  Great  Illusion,  "Dr.  Bertillon,  the  French  statistician,  has 
made  an  elaborate  calculation  of  the  relative  wealth  of  the  indi- 
viduals of  each  country.  The  middle  aged  German  possesses 
(on  the  established  average)  nine  thousand  francs;  the  Hollander 
sixteen  thousand." 


GINN 


319 


If,  then,  it  is  a  fact  that  there  is  no  advantage  in  trade  of  the 
great  power  over  the  small  one,  and  the  people  are  no  more  com- 
fortable or  happy  in  a  great  nation,  and  if  the  property  of  the 
small  nation  is  quite  as  secure  as  that  of  the  large  one,  as  con- 
trary opinions  are  held  by  so  many  people  we  must  institute  a 
campaign  of  education  along  these  lines  to  dissipate  them. 

There  seems  to  be  a  naval  fever  extending  all  over  the  world 
in  which  each  nation  is  vying  with  the  other  in  the  pride  of  mili- 
tary glory.  A  few  years  ago  Chili  and  Argentina  erected  a  statue 
of  Christ  high  up  on  the  Andees  as  a  monument  to  perpetual 
friendship  and  peace  between  those  nations.  They  intended  to 
disband  their  armies  and  navies  and  rely  wholly  upon  the  good 
will  of  the  people  for  their  security.  Hardly  had  the  monument 
been  dedicated  when  our  flying  squadron  was  sent  around  South 
America  to  the  Pacific  on  its  educational  work.  The  lesson  was 
an  impressive  one.  The  statue  on  the  Andees  to  perpetual 
peace  was  quickly  forgotten  and  the  navy  craze  took  possession  of 
the  people,  when  they  forthwith  proceeded  to  build.  Those  who 
felt  that  this  sailing  of  our  fleet  was  a  peaceful  message  to  the 
nations  made  a  great  mistake.  It  only  aroused  in  them  a  greater 
desire  to  match  our  magnificent  fleet. 

The  question  of  fortifying  the  Isthmian  Canal  is  now  before  us 
and  is  likely  to  have  a  strong  bearing  upon  international  affairs. 
If  we  feel  that  it  is  necessary  to  fortify  this  canal  in  order  to  pro- 
tect ourselves  from  the  encroachments  of  others,  it  will  show  to 
the  whole  world  a  distrust  of  others  that  they  do  not  show  towards 
us.  Can  we,  one  of  the  most  powerful  nations  on  the  globe, 
afford  to  put  ourselves  in  such  a  situation?  It  is  not  so  much  the 
fifteen  or  fifty  million  dollars  that  will  be  worse  than  wasted 
in  such  fortifications,  nor  the  constant  expense  attending  the 
keeping  Up  of  these  fortifications  that  I  deprecate,  as,  in  such  a 
pronounced  way  showing  our  distrust  of  other  nations. 

I  consider  it  a  very  important  part  of  our  work  to  secure  a 
reduction  in  the  armaments  of  the  world.  It  is  very  evident  to 


320  JUDICIAL   SETTLEMENT 

me  that  it  is  a  great  mistake  for  the  advocates  of  peace  to  cry 
"Disarm  Disarm!"  without  putting  a  substitute  in  place  of 
the  present  large  armaments,  for  the  people  of  this  world  have 
been  running  so  many  years  along  this  same  track  that  they  will 
not  give  up  what  they  feel  is  necessary  for  the  good  of  all  nations 
until  something  else  is  put  in  its  stead  that  would  accomplish 
the  same  end  at  less  expense  of  blood  and  treasure.  Every  cry 
for  disarmament  without  an  accompanying  plan  of  this  kind  is 
a  decided  disadvantage  to  the  cause  of  peace.  The  economic 
conditions  of  this  world  must  be  studied  in  all  their  bearings 
past,  present  and  future.  We  should  catalogue  the  amount  of 
treasure  spent  and  the  number  of  human  lives  sacrificed  in  war. 
We  should  set  forth  in  forceful  language  the  effect  of  these  losses 
upon  the  development  of  the  world.  The  cost  in  dollars  and 
cents  is  the  smallest  loss  to  be  considered.  The  human  lives 
sacrificed  are  the  main  thing, — the  bright  young  men  in  the 
strength  of  early  manhood,  their  home  surroundings  broken  up, 
sent  into  camps  to  die  there  or  on  the  battlefield.  The  loss  to 
the  world  cannot  be  calculated.  The  human  family  needs  its 
best  blood  for  its  highest  development.  Research  should  be 
carried  along  on  biological  lines,  as  has  already  been  begun  by 
Dr.  Jordan,  and  we  should  ascertain  as  nearly  as  possible  from 
some  of  the  nations  that  have  suffered  most,  what  effect  war 
has  had  upon  them. 

Our  cause  has  suffered  greatly  because  we  have  not  urged  more 
forcefully  the  substitute  for  large  armies  that  shall  give  the  needed 
protection.  We  have  been  considering  this  whole  problem  from 
the  standpoint  of  the  ideal  but  the  hardheaded  men  of  business 
and  the  men  who  manage  the  affairs  of  the  nations  will  not  be 
guided  by  idealists.  They  will  see  to  it  that  nothing  which  they 
think  necessary  for  the  protection  of  the  rights  of  the  nations 
shall  be  dispensed  with  until  something  better  is  put  in  its  place. 
Now  our  idea  is  to  bring  constantly  before  the  people  the  advan- 
tages resulting  from  taking  a  portion  of  the  present  armaments, 


GINN 


321 


say  ten  per  cent.,  and  establishing  an  international  army.  The 
advantages  of  such  a  readjustment  are  these:  It  will  cost  practi- 
cally nothing,  and  by  posting  sections  in  the  places  where  trouble 
is  most  likely  to  occur,  adequate  protection  will  be  secured. 

We  would  have  this  international  army  organized  exactly  as 
the  sepatare  national  armies  are  now,  with  their  land  and  naval 
forces,  a  physical  restraint  against  the  lawless.  We  are  not  in 
full  sympathy  with  those  who  would  do  away  with  such  restraint. 
It  will  be  many,  many  years  before  we  can  afford  to  put  ourselves, 
either  individually  or  nationally,  at  the  mercy  of  the  turbulent 
and  lawless.  Physical  force  may  always  be  needed  to  insure 
protection  against  this  class,  but  for  the  good-intentioned,  for 
the  law  abiding  citizens  of  this  world,  this  force  is  not  needed. 
Yet  we  are  to-day  organized  on  the  basis  of  including  all  the 
people  of  the  world  in  the  lawless  class.  Each  and  every  nation 
is  arming  itself  as  though  encroachment  were  imminent  from  all 
quarters  of  the  globe. 

We  would  not  have  the  question  of  the  kind  of  armaments,  or 
the  kind  of  police  protection,  discussed  at  all.  We  would  remove 
all  this  from  the  discussion  and  simply  take  what  is  generally  con- 
sidered as  necessary  for  protection  against  the  lawless  and  vicious. 
We  would  accept  conditions  as  we  find  them,  but  limit  the  expense 
Jn  money  and  human  life  for  such  protection  as  seems  necessary. 

The  military  men  and  the  peace  men  alike  should  cooperate 
in  an  arrangement  having  for  its  object  the  lessening  of  the 
burdens  of  all  as  well  as  the  dangers  to  all.  If  such  an  army 
should  be  established  in  good  faith  and  be  allowed  to  continue 
in  force  for  a  period  of  ten  years  we  think  it  would  prove  to  the 
world  that  it  could  afford  ample  protection  to  each  and  every 
nation  in  all  its  rights,  both  territorial  and  political;  and  if  this 
could  once  be  demonstrated  to  the  whole  world,  the  people  would 
not  willingly  tax  themselves  longer  for  these  unnecessarily  large 
armaments.  What  a  benefit  to  mankind  such  a  saving  of  blood 
and  treasure  would  be!  With  this  vast  amount  of  property  and 


322  JUDICIAL  SETTLEMENT 

of  human  lives  saved  from  destruction  and  devoted  to  construc- 
tive work  of  every  kind. 

We  have  a  precedent  for  such  action  in  the  Boxer  difficulties 
where  the  nations  each  contributed  their  quota  to  the  military 
force  necessary  to  relieve  the  legations;  and  the  establishment 
of  an  international  army  might  become  a  very  important  begin- 
ning for  a  world  congress.  It  seems  the  natural  and  necessary 
step  to  such  a  congress  that  there  should  be,  first,  protection 
for  each  and  all.  Then,  an  international  court,  not  of  arbitra- 
tion, but  of  justice,  should  be  formed. 

When  we  have  secured  this  court  of  justice  and  the  executive 
forces  necessary  to  protect  the  nations,  the  next  step, — an  inter- 
national congress, — would  be  simple.  When  these  organizations 
are  established,  the  border  lines  between  the  nations  will  practi- 
cally disappear  except  for  local  needs,  and  all  the  nations  will  be 
as  free  in  the  interchange  of  activities  as  are  our  different  states. 
Already  these  boundary  lines  are  vanishing,  as  will  be  seen  by 
the  various  international  organizations  which  are  considering 
the  well  being  of  all  without  regard  to  nationality:  International 
Institute  of  Agriculture,  International  Medical  Association 
against  Warfare,  The  Permanent  Committee  of  the  International 
Congresses  of  Chambers  of  Commerce,  International  Congresses 
of  the  Press,  International  Congresses  on  Science,  The  Red 
Cross  Society. 

The  advantages  coming  from  a  closer  intercourse,  or  inter- 
mingling, among  the  nations  can  not  be  overestimated.  We  have 
done  something  in  the  exchange  of  professorships,  in  the  visiting 
of  representatives  of  various  kinds,  boards  of  trade,  etc.,  but  we 
have  hardly  made  a  beginning.  A  systematic  effort  should  be 
made  in  every  direction  to  bring  people  of  the  different  nations 
in  like  callings  into  association  with  each  other  in  order  that  they 
may  become  better  acquainted.  Not  only  private  individuals 
but  the  governments  themselves,  should  lend  a  hand.  Even  a 
small  proportion  of  the  amount  now  spent  on  military  appropria- 


GIKN 


323 


tions  would  yield  a  much  richer  return  if  directed  to  this  use. 
It  is  simply  because  the  people  of  the  different  nations  do  not 
know  each  other  and  see  the  seas  alive  with  battleships  and  the 
frontiers  bristling  with  cannon,  that  they  distrust  each  other. 
Why,  they  say,  are  these  instruments  of  destruction  frowning 
upon  us  if  they  are  not  to  be  used?  We  do  not  intend  to  attack 
others,  but  are  in  constant  fear  of  being  attacked  by  them.  This 
acquaintance  of  the  different  peoples  will  dissipate  such  fears 
and  there  will  no  longer  be  need  of  these  heavy  armaments  on 
land  and  sea.  The  whole  world  could  go  peaceably  about  its 
work  without  spending  half  of  its  revenue  to  support  a  system 
that  is  not  only  unnecessary,  but  a  detriment  to  the  welfare  of 
man. 

In  bringing  about  these  reforms  we  should  thoroughly,  under- 
stand and  appreciate  the  influences  that  we  must  counteract. 
This  can  not  be  done  with  a  handful  of  men  and  a  million  or  two 
of  dollars.  Great  as  is  the  power  of  moral  and  intellectual  forces, 
we  have  before  us  a  task  that  few  comprehend.  It  is  for  us  not 
only  to  institute  the  measures  necessary  to  curtail  this  expense 
of  life  and  property,  but  to  bring  conviction  to  the  masses  that 
this  question  can  not  be  handled  successfully  by  a  few  people. 
It  is  a  work,  and  a  most  difficult  one,  for  the  whole  world,  and 
we  must  do  our  part  towards  bringing  this  subject  so  forcefully 
before  each  and  every  one  that  they  will  feel  that  it  is  necessary 
for  them  to  take  a  hand  in  it.  We  go  about  our  vocations  of 
every  kind  giving  99  per  cent,  of  our  time  and  money  to  them, 
with  hardly  a  thought  or  a  dollar  to  the  greatest  of  all  works,  and 
we  expect  these  terrible  evils  of  war  will  soon  be  done  away  with, 
that  in  some  way  the  powers  of  the  earth  or  the  heavens  will 
remove  them.  Great  changes  in  the  established  order  of  things 
do  not  come  about  in  that  way.  The  All-wise  Power  has  no 
hands  or  voice  but  ours.  He  must  work  through  His  creatures 
and  if  they  fail  to  take  up  His  commands,  the  work  will  have  to 
wait  until  a  new  order  of  beings  shall  be  created. 


324  JUDICIAL   SETTLEMENT 

Latent  sympathy  and  feeling  must  be  transformed  into  active 
work .  It  is  our  province  to  make  that  change.  It  cannot  come 
about  with  the  efforts  of  half  a  dozen  men.  We  must  bring  con- 
viction to  the  millions  that  it  is  their  duty  to  take  hold  of  this 
question  actively  and  put  their  shoulder  to  the  wheel  by  conse- 
crating their  time  and  money  to  the  cause. 

The  vast  amount  of  good  literature  on  the  subject  of  peace 
and  the  number  of  conventions  that  have  been  held,  while  they 
have  exerted  a  certain  amount  of  educational  force  for  the  good 
of  the  world,  have  failed  to  bring  about  any  considerable  saving 
in  life  and  property,  and  mankind  now  is  spending  nearly  one 
half  of  all  the  public  revenue  of  the  world  upon  these  heavy  arma- 
ments. It  is  not  enough  to  have  good  literature  and  money. 
They  accomplish  a  certain  amount  of  good;  but  before  the  world 
will  take  that  deep  interest  in  these  affairs  and  realize  the  burdens 
resting  upon  them,  they  must  be  approached  in  a  different  spirit. 
It  will  not  be  sufficient  for  the  minister  in  the  pulpit  to  devote 
one  Sunday  in  the  year  to  a  peace  sermon;  or  the  teacher  in  the 
school  one  day  in  the  year  to  lessons  on  peace;  or  the  press  of  the 
world  one  editorial  in  the  year  to  this  great  subject;  nor  the  men 
of  business  and  finance  to  have  a  convention  once  or  twice  a  year 
to  talk  over  these  matters. 

Men  like  those  we  have  secured  must  go  into  the  field  and 
impart  to  the  people  their  own  enthusiasm  for  the  work.  The 
people  must  be  awakened  by  some  such  spirit  before  they  will 
read  and  be  convinced  of  the  necessity  of  their  taking  an  active 
part  in  this  work.  No  man  is  large  enough  to  do  this  work  and 
attend  to  something  else  nine  tenths  of  his  time.  The  largest 
man  is  none  too  large  to  give  his  whole  time  to  it  and  instead  of 
half  a  dozen,  we  need  hundreds  of  such  advocates. 

There  is  a  great  advantage  in  having  at  the  head  of  our  impor- 
tant undertakings  leading  men  who  have  achieved  great  results 
hi  the  world.  They  command  a  certain  following,  but  the  future 
success  of  this  work  must  rely  upon  young  and  vigorous  men  who 
wish  to  devote  their  whole  lives  to  carrying  it  forward,  men  who 


GINN  325 

can  inspire  in  others  the  same  feeling,  until  every  preacher  and 
every  teacher  and  every  editor  and  every  important  business  man 
in  the  whole  world  is  brought  into  active  cooperation  with  our 
work.1 

THE  CHAIRMAN  (BALDWIN)  :  We  are  asked,  before  we  adjourn, 
to  give  five  minutes  to  Mr.  Stewart,  of  New  York,  who  is  one 
of  the  active  promotors  of  the  celebration,  in  a  fitting  way,  of 
the  centenary  of  peace  between  England  and  the  United  States. 
I  take  pleasure  in  presenting  to  you  Mr.  J.  A.  Stewart. 

MR.  STEWART:  Mr.  Chairman,  Ladies  and  Gentlemen,  it  may 
be  wholly  within  reason  to  say  that  in  1914,  for  the  second  time 
since  the  first  day  of  the  first  year  of  the  Christian  era,  there  will 
come  home  to  the  peoples  of  the  earth  a  full  and  complete  reali- 
zation of  the  Angel  song  at  Bethlehem,  "Glory  to  God  in  the 
highest,  peace  on  earth,  good  will  towards  men,"  for  upon  Christ- 
mas morning  of  1914  there  will  end  the  first  century  of  peace 
among  English-speaking  peoples,  and  there  will  begin  the  dawn 
of  a  peace  which  we  may  well  believe  shall  end  only  with  time 
itself. 

So  it  has  seemed  to  some  of  us,  in  fact  to  many  of  us  in  this 
country,  .in  England,  hi  Canada,  in  Australia  and  in  New  Zealand, 
that  the  hundredth  anniversary  of  the  signing  of  the  treaty  of 
Ghent  should  be  signalized  in  some  manner  that  will  bring  home 
to  the  peoples  of  the  English-speaking  world — and  not  alone  to 
them,  but  to  the  peoples  of  all  the  world — the  beneficence  of  peace. 

At  present  the  man  in  the  street,  who  has  his  aspirations  too, 
unfortunately  does  not  understand  the  peace  movement.  He 
believes  that  to  a  greater  or  less  degree  it  is  something  of  an 
intellectual  past- time;  that  it  is  unpractical,  and  now  and  only 
now  for  the  first  time  there  is  being  made  an  effort  to  educate 
the  man  in  the  street  to  a  realization  of  what  the  peace  movement 

iSee  Appendix  B. 


326  JUDICIAL  SETTLEMENT 

really  is.  Therefore,  we  have  believed  that  our  committee, 
which  has  been  named  the  National  Committee  for  the  Celebra- 
tion of  the  Hundredth  Anniversary  of  Peace  Among  English- 
Speaking  peoples,  has  a  peculiar  and  very  distinctly  important 
part  to  play  in  this  general  peace  movement.  For  we  believe, 
Mr.  Chairman  and  ladies  and  gentlemen,  that  through  the  cele- 
bration— and  what  form  it  will  take,  we  do  not  know,  because 
that  has  not  been  decided  upon, — but  through  a  general  inter- 
national celebration  which  shall  find  its  initiative  first  in  a  national 
committee  and  afterwards  in  a  world-wide  committee  to  cele- 
brate this  most  momentous  event,  the  man  in  the  street,  as  I 
have  designated  him,  will  more  clearly  understand  this  movement. 
We  are  asking  the  members  of  the  various  organizations  and  the 
people  of  the  country  to  direct  their  attention  to  the  work  we  are 
trying  to  do,  and  to  extend  to  us  some  sympathetic  interest; 
because  after  all,  when  all  is  said  and  done,  conferences  may 
meet  and  governments  may  confer,  but  whether  we  act  on  the 
principle  of  a  community  of  interests  in  the  world  at  large  depends 
on  the  people.  Governments  having  extended  interests  may  be 
opposed  to  one  another,  as  they  often  are,  as  in  fact  we  might 
say  they  always  are.  National  traditions  tend  to  widen  the 
breach  and  blind  men  to  that  community  of  interest  which  is 
always  found  among  the  people,  even  among  people  who.  are  alien 
to  one  another  in  race  and  civilization.  Therefore  we  believe 
that  the  movement  which  we  are  now  trying  to  inaugurate  is 
closely  related  to  the  work  which  you  are  trying  to  do.  We  can 
prepare  the  way;  we  can  bring  the  people's  mind  to  a  realization 
of  the  great  importance  of  what  you  are  trying  to  do,  and  thus 
make  it  very  much  easier  for  you  to  accomplish  your  purpose. 
For  that  reason  we  believe  that  you  should  take  part  with  us  in 
the  effort  to  celebrate  the  Treaty  of  Ghent,  and  of  course  the 
celebration  is  more  or  less  of  a  pretext.  The  event  in  itself 
should  be  celebrated,  but  our  true  object  is  to  prepare  and  make 
receptive  the  public  mind  for  the  ideals  at  which  you  are  aiming 
and  which  you  must  popularize  if  you  would  succeed. 


DISCUSSION  327 

PRESIDENT  ELIOT:  Mr.  Chairman,  for  the  purpose  of  promot- 
ing the  objects  of  the  Society,  there  is  another  event  close  by 
1814  which  is  immensely  more  important  than  the  signing  of 
that  treaty  at  Ghent.  The  treaty  was  just  an  ordinary  treaty 
between  two  nations  which  had  been  fighting;  they  agreed  to 
terms  on  which  the  fighting  should  cease.  Many  such  treaties 
have  been  signed  in  the  history  of  the  world.  True,  since  that 
treaty  was  signed  England  and  the  United  States  have  not 
fought,  but  the  reason  they  have  not  fought  is  probably  found  in 
an  event  which  took  place  three  years  later  (1817),  when  a  very 
simple  agreement  was  signed  between  the  two  governments  to 
the  effect  that  there  should  be  no  armaments  on  the  Great  Lakes 
except  certain  little  specified  vessels  of  100  tons  or  so  with  one 
gun  each.  That  event  is  the  best  event  in  the  world  to  celebrate. 
I  could  almost  wish  that  the  celebration  which  has  just  been  pro- 
posed to  us  should  be  shifted  just  a  bit — three  years  later. 

MR.  WILLIAM  RENWICK  RTDDELL:  Mr.  Chairman,  I  promised 
not  to  speak  again.  But  international  promises  are  not  binding! 

In  1888,  when  it  was  expected  that  a  treaty  which  had  been 
signed  by  the  representatives  of  the  two  countries  would  be  rati- 
fied by  Congress,  there  was  an  agreement  with  respect  to  the 
fisheries  on  the  Atlantic  coast  entered  into  by  representatives  of 
the  two  countries,  which  was  to  take  effect  immediately  and  con- 
tinue until  such  time  as  the  Senate  should  ratify  the  treaty  then 
signed.  The  Senate  failed  to  ratify  the  treaty,  but  even  the 
Senate  could  not  prevent  two  commonsense  peoples  who  were 
living  close  together  from  acting  in  a  commonsense  way;  and  that 
modus  vivendi,  without  written  authority,  without  any  authoriza- 
tion from  anybody,  has  been  continued  up  to  the  present  day. 
We  two  peoples  have  been  living  together  under  a  modus  vivendi 
affecting  matters  of  very  great  importance,  which  is  without  any 
binding  validity,  and  that,  I  venture  to  think,  shows  the  relation- 
ship existing  between  the  two  English-speaking  peoples  better 
than  anything  else. 


328  JUDICIAL   SETTLEMENT 

There  is  nothing  the  United  States  can  do  to  show  affection 
and  regard  for  her  sister  English-speaking  people,  there  is  nothing 
the  United  States  or  its  people  can  do  to  show  the  earnest  desire 
for  peace  amongst  English-speaking  people,  and  if  possible  all 
peoples,  that  Canada,  to  her  limited  means,  Canada,  to  her  limited 
numbers,  will  not  supplement  and  heartily  assist. 

Mr.  Chairman,  I  have  some  pride  in  addressing  this  audience, 
for  two  reasons.  The  first  is  personal,  because  I  was  the  first 
member  of  this  Association.  The  second  is  that  my  people  in 
Parliament  were  the  first  people, — only  the  other  day  since  this 
Conference  began, — who  passed  a  unanimous  resolution  urging 
the  proper  authorities,  to  do  their  utmost  to  make  a  permanent 
treaty  of  peace  between  the  English-speaking  peoples,  so  that 
every  dispute  between  them,  not  may  or  perhaps  can,  but  shall 
be  disposed  of  by  an  international  tribunal. 

THE  CHAIRMAN  (BALDWIN)  :  Ladies  and  gentlemen,  this  brings 
the  morning  session  and  with  it  the  conference  proper  of  our  very 
promising,  progressive  Society  to  an  end.  I  think  the  conference 
has  been  remarkable  for  this  fact:  Here  is  a  long,  varied  program, 
quite  an  attractive  one,  speakers  not  alone  from  every  part  of  the 
United  States,  but  from  Canada  and  England  and  even  Persia; 
everyone  of  the  speakers  on  the  program  has  appeared  in  person 
to  present  his  subject  to  you.  We  owe  a  great  deal  to  our 
president,  Doctor  Scott;  and  our  secretary,  Mr.  Marburg,  whom 
I  congratulate  on  the  life  and  health  of  the  Society  which  he 
did  so  much  to  found;  but  these  gentlemen  have  requested  me 
to  make  public  acknowledgment  in  their  behalf,  as  well  as  in 
behalf  of  this  Society,  for  the  most  valuable  services  also  rendered 
in  connection  with  this  conference  by  the  Honorable  Francis  B. 
Loomis,  formerly  Secretary  ad  interim  of  the  United  States. 
He  has  been  freely  consulted,  has  made  many  valuable  sugges- 
tions; and  this  meeting  is  the  work  largely  of  these  three  gentle- 
men. 


DISCUSSION  329 

Ladies  and  gentlemen,  reminding  you  that  this  evening  at 
seven  o'clock  we  are  to  have  our  dinner  in  the  great  ball  room  on 
my  left,  and  that  we  are  to  hear  from  the  President  of  the  United 
States  and  others  on  that  occasion,  I  declare  this  conference  closed 
and  adjourned. 

(Thereupon  at  1:45.  o'clock  P.M.,  the  conference  adjourned.) 


SPEECHES  AT  THE  BANQUET 
SATURDAY  EVENING,  DECEMBER  17 

PRESIDENT  SCOTT:  Gentlemen,  I  have  the  honor  and  the 
pleasure  to  introduce  as  Toastmaster  General  Stewart  L.  Wood- 
ford,  who  has  kindly  consented  to  act  in  that  capacity. 

INTRODUCTORY  ADDRESS 

GENERAL  STEWART  L.   WOODFORD 

Mr.  President  and  Gentlemen,  this  is  the  closing  meeting  of 
what  has  been  a  remarkable  conference.  It  has  been  unique 
in  the  munificent  generosity  of  Mr.  Carnegie.  It  is  memorable 
in  that  it  emphasizes  the  affirmative  action  of  the  executive  of 
the  United  States  in  behalf  of  an  international  tribunal  founded 
upon  justice,  and  whose  decrees  shall  be  enforced  by  the  united 
police  of  civilized  nations. 

Nearly  forty  years  have  passed  since  the  last  great  European 
war,  and  that  is  of  itself  a  tremendous  step  toward  ultimate' 
international  peace.  My  thought  goes  back  tonight  over  these 
forty  years  to  the  time  when  the  battle  of  Sedan  had  been  fought, 
when  the  house  of  cards  which  Napoleon  III  had  built  and  called 
an  empire  had  fallen,  and  when  he  was  a  fugitive.  It  was  my 
privilege  to  be  the  guest  of  President  Grant  at  his  summer  home 
near  Long  Branch.  The  Franco-Prussian  campaign  was  natu- 
rally a  subject  of  conversation.  When  General  Grant  was  at  his 
own  table  and  among  his  friends  he  laid  aside  his  Sphinx-like 
taciturnity,  and  talked  with  rare  frankness  and  directness.  After 
he  had  commented  upon  the  strategy  of  the  Prussian  campaign, 

330 


JUSSERAND  331 

he  laid  down  his  cigar  on  the  table  and  said  substantially,  "These 
awful  butcheries  must  sometime  cease.  Rulers  make  wars  and 
the  plain  people  do  the  fighting,  pay  the  taxes  and  bear  the 
burden.  Some  day  this  must  stop.  Some  day  the  common 
sense  of  the  world  will  limit  these  armaments,  reduce  this  taxa- 
tion, establish  a  great  international"  court  which  shall  decide 
differences  between  nations  on  the  single  basis  of  justice  and 
whose  decrees  will  be  enforced  by  a  police  to  which  all  the  nations 
of  the  world  shall  contribute." 

Those  were  the  words  of  one,  who,  when  he  uttered  them, 
was  one  of  the  three  great  living  soldiers  of  the  world.  *  He, 
Von  Moltke,  and  Robert  E.  Lee  were  probably  recognized  at 
that  hour  as  the  three  greatest  living  soldiers.  He  expressed 
what  he  fought  for  in  those  words  that  are  written  above  his 
tomb — "Let  us  have  peace." 

What  he  dreamed  of  then  will  some  day  come.  I  know  not 
what  struggles  these .  tremendous  armaments  may  compel.  I 
know  not  what  Armageddons  may  yet  be  fought  in  the  upper 
sky;  but  whatever  the  combats  that  shall  be,  the  dawn  is  bright- 
ening toward  a  day  when  the  song  of  Bethlehem  shall  be  the 
inspiration  of  the  diplomacy  of  the  world,  and  the  essence  of 
the  great  judicial  decrees  of  the  world. 

First  on  our  list  of  speakers  is  the  French  Ambassador,  whose 
•  toast  is  "The  Stormy  Path  from  War  to  Peace." 


FROM  WAR  TO  PEACE 
J.  J.  JUSSERAND,  FRENCH  AMBASSADOR  AT  WASHINGTON. 

Mr.  Toastmaster  and  Gentlemen:  Does  peace  mean  progress? 
Is  the  disappearance  of  war  a  sign  of  improvement  or  of 
decay?  At  a  yet  recent  date,  learned  men,  their  eyes  on 
their  microscopes,  were  teaching  us  that,  among  the  various 


332  JUDICIAL  SETTLEMENT 

kinds  of  living  creatures  they  had  studied,  war  was  the  rule; 
that  where  struggle  ceased,  life  ceased;  and  that  since  more 
beings  came  into  the  world  than  the  world  could  feed,  the 
destruction  of  the  weakest  was  both  a  necessity  and  a  condition 
of  progress.  Struggle,  war,  violence,  meant  development;  peace 
meant  decay.  And  a  bold  generalization  applied  to  reasoning 
man  the  fate  and  conditions  of  unreasoning  vermin.  Since  it 
was  fate,  why  resist  the  inevitable  and  what  could  be  the  good 
of  peace  debates? 

But  the  stumbling  block  that  Science  had  placed  on  the  road 
to  better  days  has  been  removed  by  Science  herself.  The  sweep- 
ing conclusions  attributed  to  that  great  man  Darwin  by  pupils 
less  great  have  been  scrutinized;  other  experiments,  such  as  he 
would  have  conducted  himself  had  he  been  living,  were  tried? 
and  their  results  added  to  our  book  of  knowledge.  Great  results 
indeed  and  notable  ones;  it  turned  out  that  the  explanation  of 
transformism,  of  progress,  of  survival,  was  not  to  be  found  hi  a 
ceaseless  war  insuring  the  predominance  of  the  fittest,  but  in 
quiet  and  peaceful  adaptation  to  environment,  to  climate  and  to 
circumstances.  And  we  French  are  excusably  proud  to  see 
that,  for  having  unfolded  those  truths  years  before  Darwin,  due 
honor  is  now  rendered  almost  everywhere,  and  especially  in 
America,  to  Jean  Baptiste  de  Lamarck,  author  of  the  long  ob- 
scure and  now  famous  Philosophic  Zoologique,  1809. 

As  for  the  undue  multiplication  of  individuals,  statistics  un- 
known to  Darwin  have  since  shown  that,  whatever  may  be  the 
case  with  beetles  or  fishes  (and  let  them  work  out  their  own 
problems  according  to  their  own  laws),  there  is,  for  man  at  least, 
no  need  of  self-destruction  to  ward  off  such  a  peril:  the  general 
decrease  of  the  rate  of  reproduction,  so  striking  throughout  the 
world,  is  all  that  is  wanted,  and  in  some  cases  is  even  more  than 
is  wanted. 

War  therefore  is  not  our  unavoidable  fate  and  so  much  of  the 
road  has  been  cleared:  a  long  road  followed  amid  terrible  suffer- 


JTJSSERAND  333 

ings  by  mankind  through  centuries.  The  chief  danger  in  times 
past,  and  partly  still  in  our  own,  does  not  result  from  an  ineluct- 
able fate,  but  from  the  private  disposition  of  men  and  of  their 
leaders.  And  we  know  what  for  ages  those  dispositions  were. 
Former-day  chroniclers  are  wont  to  mention,  as  a  matter  of 
course,  that  "the  king  went  to  the  wars  in  the  season,"  as  he 
would  have  gone  a-fishing.  People  at  large  saw  not  only  beauty 
in  war  (as  there  is  in  a  just  war,  and  of  the  highest  order,  just 
as  there  is  in  every  duty  fulfilled),  but  they  saw  in  it  an  unmixed 
beauty.  Men  and  nations  would  take  pride  in  their  merciless 
ness,  and  they  were  apt  to  find  in  the  sufferings  of  an  enemy  an 
unalloyed  pleasure. 

Such  were  the  feelings  of  the  day.  To  none  of  the  master 
artists  who  represented  the  day  of  judgment  on  the  walls  of 
Rome,  Orvieto  or  Padua,  or  on  the  porches  of  our  Northern 
cathedrals,  did  the  thought  occur  to  place  among  his  fierce  angels 
driving  the  guilty  to  their  doom,  one  with  a  tear  on  his  face:  a 
tear  that  would  have  made  the  artist  more  famous  than  all  his 
art;  a  tear  not  because  the  tortures  could  be  supposed  to  be  un- 
just or  the  men  sinless,  but  because  they  were  tortures  and 
because  the  men  had  been  sinful.  Dies  irael 

Artists  belonged  to  their  time  and  expressed  their  time's 
thought.  The  teaching  of  saints  and  of  thinkers  long  remained 
of  little  avail.  War,  that  "human  malady,"  as  Montaigne  said, 
was  considered  as  impossible  to  heal  as  rabies  was — until  the  day 
when  a  Pasteur  came.  Yet  protests  began  to  be  more  perceptibly 
heard,  as  men  better  understood  what  they  themselves  were,  and 
commenced  to  suspect  that  the  time  might  come  when  all  would 
be  equal  before  the  law.  Nothing,  Tocqueville  has  observed,  is  so 
conducive  to  mercy  as  equality. 

All  those  who,  hi  the  course  of  centuries,  led  men  to  the  conquest 
of  their  rights  can  be  truly  claimed  as  the  intellectual  ancestors 
of  you  all,  promoters  of  a  sane  international  peace :  men  like  our 
Jean  Bodin,  who,  while  upholding,  as  was  unavoidable  in  his  day, 


334  JUDICIAL  SETTLEMENT 

the  principle  of  autocracy,  yet  based  his  study  of  the  government 
of  nations  on  the  general  interests  of  the  commonwealth,  and 
who,  in  opposition  to  Machiavel,  who  had  called  his  book  The 
Prince,  called  his  The  Republic  (1576).  To  Bodin,  who  protests 
against  the  so-called  right  of  the  strongest,  have  been  traced 
some  of  the  principles  embodied  much  later  in  the  American  and 
in  the  French  "Declaration  of  the  Rights  of  Man." 

Such  thinkers  truly  count  among  your  ancestors;  such  men  as 
that  great  Hugo  Grotius  whose  ever-living  fame  was  not  without 
influence  on  the  selection  of  his  own  country  as  the  seat  of  the 
Peace  Conferences  of  our  day,  and  who,  settled  then  in  France, 
near  Senlis,  dedicated  to  King  Louis  XIII  his  famous  work  on 
War  and  Peace  so  memorable  for  its  denunciation  of  frivolous 
wars  and  wanton  cruelties. 

Soon  the  name  of  those  your  Association  should  honor  became 
legion;  men  like  Pascal,  Saint  Pierre,  the  Encyclopedists,  Kant 
Bentham,  Tocqueville  and  many  others. 

Among  Pascal's  Thoughts  is  this  memorable  one,  which  fore- 
casts and  sums  up  much  of  what  has  since  been  or  shall  be  done: 
''When  it  is  a  question  of  deciding  whether  war  should  be  waged, 
of  sentencing  so  many  Spaniards  to  death,  one  man  only  decides, 
and  one  who  is  interested.  The  decision  ought  to  rest  with  an 
impartial  third  party." 

A  little  later,  that  strange  Abbe  de  St.  Pierre  was  writing  those 
works,  considered  as  so  many  mad  dreams  in  his  day  and  no 
longer  read  at  all  in  ours.  But  if  he  were  to  return  now,  he  would, 
according  to  one  of  his  latest  critics,  feel  not  at  all  dismayed,  but 
say:  "This  is  all  for  the  best;  you  need  not  study  my  works,  since 
you  have  put  in  practice  nearly  all  my  ideas;  there  remains  only 
my  Perpetual  Peace;  but,  like  the  others,  its  turn  will  come." 

If  its  turn  has  not  come  yet,  great  practical  steps  have  surely 
been  taken  towards  it,  chief  among  them  that  move,  so  unexpected 
a  few  years  ago,  so  dubiously  wondered  at  when  it  occurred,  and 
now  so  thoroughly  accepted,  that,  as  in  the  case  of  all  great 


JTJSSERAND  335 

inventions,  one  wonders  how  things  could  go  on  before  it  existed : 
the  calling  of  the  first  Conference  at  The  Hague  by  the  Emperor 
of  Russia,  Nicholas  II. 

"The  maintenance  of  general  peace,"  read  the  Russian  circular 
of  August,  1898,  "and  a  possible  reduction  of  the  excessive  arma- 
ments which  weigh  upon  all  nations,  present  themselves  in  the 
actual  situation  of  the  world,  as  the  ideal  towards  which  should 

tend  the  efforts  of  all  Governments The   ever 

increasing  financial  expense  touches  public  prosperity  at  its 
very  source;  the  intellectual  and  physical  powers  of  peoples, 
labor  and  capital,  are,  most  of  it,  turned  aside  from  their  natural 
functions  and  consumed  unproductively.  ...  To  put  an 
end  to  those  ceaseless  armaments  and  to  find  means  for  prevent- 
ing the  calamities  which  threaten  the  entire  world,  such  is  the 
supreme  duty  which  to-day  lies  upon  all  States." 

When  one  man,  then  another,  then  another,  had  come  and  said: 
I  can  draw  the  lightning  from  the  clouds;  I  can  rise  in  the  air; 
I  can  flash  your  words  and  thoughts  to  any  distance  you  please; 
I  can  cure  rabies  by  inoculating  rabies;  I  can  make  you  talk  with 
your  friend  miles  away;  I  can  navigate  a  boat  under  the  sea, 
scepticism  had  scarcely  been  greater  than  when  the  circular 
took  the  world  by  surprise.  The  issue  seemed  more  than  doubt- 
ful; many  among  the  most  sanguine  barely  hoped  to  succeed  in 
preventing  the  absolute  failure  that  would  have  killed  such  a 
project  for  generations. 

Shortly  afterwards  I  happened  to  be  in  St.  Petersburg  and  had 
the  honor  of  being  received  by  the  Emperor.  The  conversation 
fell  on  the  "  Great  Design,"  to  give  it  the  name  used  for  the  very 
different  plan  (implying  coercion)  attributed  two  centuries  before 
to  the  French  King  Henry  IV.  I  was  struck  by  the  quiet  con- 
viction of  the  originator  of  the  new  movement  as  to  its  ultimate 
results,  and  his  disposition  not  to  give  up  the  plan  if  at  first  it 
met  with  difficulties  and  delays.  Emperor  Nicholas  summed  up 
his  views  with  the  remark:  "One  must  wait  longer  when  planting 
an  oak  than  when  planting  a  flower." 


336  JUDICIAL  SETTLEMENT 

Longer  indeed :  yet  not  so  very  long  after  all.  The  first  Con- 
ference took  place,  and  in  it,  I  may  say,  the  delegations  of  our  two 
Republics  presided  over  by  such  eminent  statesmen  and  thinkers 
as  Andrew  D.  White  and  Le'on  Bourgeois,  failed  not  to  fulfill  the 
part  assigned  to  our  democracies  by  ideals  and  traditions.  In 
spite  of  scepticism,  that  first  Conference  reached  an  unexpected 
measure  of  success.  Eight  years  later  a  second  one  was  con- 
vened on  the  felicitous  suggestion  of  President  Roosevelt,  and 
now  the  supposedly  useless  mechanism  from  dreamland  has  been 
so  heartily  accepted  by  mankind  at  large,  all  over  the  globe,  that 
the  approximate  date  for  a  third  one  has  already  been  selected. 
Governments  at  first  doubted  that  one  would  be  of  any  use; 
now  they  want  more. 

The  word  had  been  spoken  indeed  at  the  proper  moment.  The 
teachings  of  philosophers  and  of  experience,  the  outcome  of 
revolutions,  a  more  vivid  sense  of  equality  among  men  imbuing 
them  with  mercy,  according  to  Tocqueville,  had  caused  the 
seed  to  fall  on  prepared  ground.  We  scarcely  realize,  looking 
at  it  from  so  near,  how  great  the  movement  thus  started  has 
already  become.  The  practical  ideas  put  forth  less  than  a  dozen 
years  ago,  have  progressed  so  much  that  more  treaties  of  arbi- 
tration have  been  signed  between  the  first  Hague  Conference 
and  now  than  between  the  day  of  Creation  and  that  Conference. 
I  take,  if  I  may  be  permitted  to  allude  to  my  own  feelings,  no  small 
pride  in  having  concluded  the  first  one, — duly  ratified  by  both 
countries, — ever  signed  by  the  United  States  with  any  European 
nation,  and  I  was  glad  to  thus  continue  an  old  established 
tradition;  since,  in  the  matter  of  treaties  with  the  United  States 
— be  they  treaties  of  commerce,  alliance  or  amity — France  being 
accustomed  to  take  the  lead  among  nations. 

Quicker  indeed  than  was  anticipated  by  the  sower  himself, 
the  oak  has  grown  and  the  nations  can  rest  under  its  shade. 
Several  important  appeals  have  been  made  to  the  Court  of  the 
Hague,  the  United  States  taking  the  lead  and  giving  to  all  the 


JTJSSERAND  337 

best  example.  Those  experiments,  which  most  of  the  great 
Powers  have  already  tried,  have  had  manifold  advantages:  they 
have  shown  that  dangerous  quarrels  could  thus  be  honorably 
settled,  they  have  shown  also  that  defects  in  the  working  of  the 
Court  exist  and  should  be  remedied. 

Public  utterances  and  circulars  from  Presidents  Roosevelt  and 
Taft,  and  from  Secretaries  of  State  Root  and  Knox,  have  pointed 
out  the  importance  of  trying  to  establish  a  permanent  court ,  with 
judges  ever  present,  paid  by  the  associated  nations,  selected 
from  among  men  of  such  a  high  moral  standing  as  to  be  above 
influence  of  creed  or  nationality,  true  citizens  of  the  world,  fit 
magistrates  to  judge  the  world. 

In  these  views,  the  future  realization  of  which  The  Second  Con- 
ference has  ensured,  France  heartily  concurred,  having  indeed 
during  the  first  Conference,  initiated  an  early  preliminary  move 
towards  continuity  and  permanence. 

Given  these  more  and  more  enlightened  dispositions  among 
Governments,  it  may  seem  that  the  work  of  a  private  society 
like  this  must  needs  be  of  comparatively  little  import.  The  re- 
verse is  the  truth.  It  has  an  immense  power  for  good,  for  it  can 
act  directly  on  the  lever  that  moves  the  world:  public  opinion. 
So  powerful  is  such  a  lever  that  even  in  the  past,  in  times  when 
men  were  not  their  own  masters,  public  opinion  had  to  be  reckoned 
with;  such  imperious  leaders  of  men  as  a  Richelieu  or  a  Napoleon 
knew  it  better  than  any  one.  Opinio  veritate  major,  had  even 
cynically  said  the  great  philosopher  Francis  Bacon.  But  if  opinion 
can  occasionally  defeat  truth,  much  better  can  it  defend  it.  With 
the  spreading  of  instruction  and  with  an  easier  access  to  men's 
minds  through  books,  journals,  public  meetings  and  free  dis- 
cussion, its  power  against  truth  has  been  considerably  diminished 
and  its  power  for  good  increased  and  purified. 

You  know  this  and  act  accordingly.  Though  doing  so  in  your 
private  capacity,  you  conform  in  fact  to  the  instructions  drawn 
by  a  masterly  hand  for  the  American  delegates  at  the  Second 


338  JUDICIAL   SETTLEMENT 

Conference  at  The  Hague.  In  these  instructions  Secretary  Root 
told  the  delegates  never  to  forget  that  "the  object  of  the  Con- 
ference was  agreement,  not  compulsion,"  and  that  the  agreements 
reached  should  be  "genuine  and  not  reluctant." 

This  is  undoubtedly  the  road  to  follow,  a  road  not  yet  smooth, 
nor  cleared  of  its  rocks  and  pitfalls.  The  dangers  continue  to  be 
many.  One  is  to  ask  too  much  too  soon  and  cause  nations  to 
fear  that,  if  they  make  any  little  concession,  they  will  be  led  by 
degrees  to  a  point  where,  being  peacefully  disarmed,  their  con- 
tinuance as  a  nation  will  depend  upon  the  will,  the  good  faith 
and  the  excellent  virtues  of  some  one  else.  Another  is  to  describe 
war  as  being  such  an  abominable  thing  in  itself,  whatever  be  its 
occasion,  as  to  cause  that  public  opinion  on  which  so  much 
depends  to  rebel  against  the  preacher  and  his  whole  doctrine. 

Let  us  not  forget  that,  even  in  the  land  of "  Utopia,"  the  country 
of  Nowhere,  in  which  every  virtue  of  good  citizenship  was  prac- 
tised, and  war  held  as  a  monstrosity,  rem  prope  beluinam,  all  wars 
had  not  been  abolished.  Sir  Thomas  More  informs  us  that 
Utopians  make  war  for  two  causes  and  keep  therefore  well  drilled. 
The  causes  are:  First,  "To  defend  their  own  country;"  second, 
"To  drive  out  of  their  friends'  land  the  enemies  that  have  in- 
vaded it."  We  have  waged  hi  the  past  such  wars  and  cannot 
pretend  to  feel  repentant. 

Such  wars  continue  to  be  unavoidable  to-day  and  to  deny  this 
is  only  to  increase  the  danger  of  a  revulsion  of  feeling  among  well 
disposed  nations.  What  we  may  hope  and  must  strive  for  is 
that,  with  the  development  of  mankind,  a  better  knowledge  of 
our  neighbors,  an  understanding  that  a  difference  is  not  neces- 
sarily a  vice,  nor  a  criticism  a  threat,  with  that  better  instruction 
which  a  society  like  yours  is  giving  to  the  many,  a  time  will 
come  when  the  same  public  opinion  will  render  impossible  the 
two  sorts  of  casus  belli  for  which  More  deems  war  to  be  not 
only  necessary  but  noble  and  virtuous. 

No  less  dangerous  is  it  to  load  war  with  all  the  sins  in  Israel, 


JUSSERAND  339 

thus  running  the  same  risk  of  making  people  rebel  not  only  against 
the  preacher  but  against  his  very  creed.  When  we  are  told  that, 
owing  to  the  wars  of  the  early  nineteenth  century,  only  inferior 
people  were  left  in  France  to  perpetuate  the  race,  we  wonder 
how  it  is  that  she  got  a  Victor  Hugo,  an  Alexandre  Dumas  and 
a  Louis  Pasteur,  sons  of  soldiers  of  Napoleon,  all  three.  We 
wonder  how,  in  spite  of  that  supposed  survival  of  "the  weak- 
est," that  country  got  so  many  thinkers,  philosophers,  poets, 
artists,  soldiers,  explorers;  how  the  venturous  spirit  of  the  former 
"  Coureurs  de  bois"  awoke  again  in  our  days  with  such  notable 
results  in  Asia,  Africa  and  elsewhere  how  birth  was  given  in  our 
land  to  the  inventors  of  the  dirigible,  the  automobile,  the  sub- 
marine; how  the  love  of  sport  in  the  race  has  reappeared  of  late, 
as  active  as  it  had  ever  been  in  the  remote  times  when  foot-ball 
and  cricket  found  in  France  their  rough-hewn  cradle. 

Exaggeration  will  not  help,  but  on  the  contrary  surely  hurt. 
Truth,  if  we  follow  her,  is  certain  to  lead  to  better  tunes.  She 
has  already.  Wars  in  former  centuries  lasted  a  hundred  years, 
then  they  lasted  thirty  years,  then  seven  years;  and  now,  as 
disastrous  as  ever,  it  is  true,  but  separated  by  longer  intervals, 
they  last  one  year.  You  are  about  to  celebrate  a  hundred  years' 
peace  with  England;  so  are  we. 

That  move  towards  truer,  longer,  perhaps  one  day  definitive 
peace,  has  been  prophesied  long  before  our  time,  not  merely  by 
a  dreamer  like  Abbe*  de  Saint-Pierre,  but  by  one  who  had  a  rare 
experience  of  men,  of  war  and  of  peace,  and  who,  considering 
especially  the  influence  of  trade  on  nations,  once  said: 

"Although  I  pretend  to  no  peculiar  information  respecting 
commercial  affairs,  nor  any  foresight  into  the  scenes  of  futurity, 
yet  as  the  member  of  an  infant  empire,  as  a  philanthropist  by 
character,  and  (if  I  may  be  allowed  the  expression)  as  a  citizen 
of  the  great  republic  of  Jiiimanity  at  large,  I  cannot  help  turning 
my  attention  sometimes  to  this  subject.  I  would  be  understood 
to  mean  that  I  cannot  help  reflecting  with  pleasure  on  the  prob- 


340  JUDICIAL   SETTLEMENT 

able  influence  that  commerce  may  hereafter  have  on  human  man- 
ners and  society  in  general.  On  these  occasions  I  consider  how 
mankind  may  be  connected  like  one  great  family  in  fraternal  ties. 
I  indulge  a  fond,  perhaps  an  enthusiastic  idea  that,  as  the  world 
is  evidently  less  barbarous  than  it  has  been,  its  amelioration 
must  still  be  progressive;  that  nations  are  becoming  more  human- 
ized in  their  policy,  that  the  subjects  of  ambition  and  causes  for 
hostility  are  daily  diminishing;  and  in  fine  that  the  period  is  not 
very  remote  when  the  benefits  of  a  liberal  and  free  commerce 
will  pretty  generally  succeed  to  the  devastations  and  horrors  of 
war." 

Thus  wrote  to  Lafayette,  on  the  i5th  of  August,  1786,  that 
"citizen  of  the  great  republic  of  humanity,"  George  Washington. 

That  practical  results  have  been  secured  is  certain;  that  better 
ones  are  in  store,  if  we  act  wisely,  is  no  less  certain.  Mankind 
longs  for  less  troubled  days,  and  moves  towards  this  not  inacces- 
sible goal.  Such  is  the  truth;  and  we  may  feel  confident  that, 
according  to  the  word  of  the  dying  Wycliffe,  "Truth  shall 
conquer." 

The  Toastmaster:  The  next  toast  is  "The  International  Court." 
It  will  be  responded  to  by  that  distinguished  diplomatist,  the 
Nestor  of  the  New  York  Bar,  that  almost  incomparable  American 
orator,  Mr.  Joseph  H.  Choate. 

RESPONSE   OF    JOSEPH  H.   CHOATE 

Mr.  Toastmaster  and  Gentlemen,  I  have  been  talking  and  hear- 
ing and  thinking  so  much  about  the  international  court  in  the 
last  three  days  that  I  hoped  I  would  be  able  to  speak  about 
something  else  tonight. 

A  word  about  ourselves,  about  this  society  which  has  called  us 
together  tonight,  and  yesterday,  and  the  day  before.  I  have 
one  fault  to  find  with  it,  and  that  is  the  interminable  length  of  its 
name:  "The  American  Society  for  Judicial  Settlement  of  Inter- 


CHOATE  341 

national  Disputes."  Mr.  Scott  must  find  some  shorter  name 
than  that.  Otherwise  we  are  sure  to  get  a  nickname  that  will 
stick  to  us.  We  have  tried  that  in  New  York,  where  we  have 
two  societies,  one  the  Society  for  the  Prevention  of  Cruelty  to 
Animals,  and  the  other  the  Society  for  the  Prevention  of  Cruelty 
to  Children.  Those  names  have  been  found  to  be  utterly  im- 
practicable and  unusable,  and  short  names  have  been  given  to 
them,  the  one  being  called  the  children's  society  and  the  other 
the  animals'  society;  and  unless  we  dock  off  some  of  these  super- 
fluous words,  this  society  will  come  to  be  known  as  the  society 
of  international  disputes. 

Now,  I  do  not  think  I  shall  instruct  too  much  to  night  about 
the  international  court,  in  spite  of  the  preface  which  General 
Woodford  has  given  to  my  name. 

All  things  are  full  of  change.  The  only  unchangeable  thing 
in  human  life  is  the  perpetual  change  in  it  every  day;  and  this 
society  represents  that  unalterable  law  of  change.  Twenty 
years  ago  our  meetings,  our  objects,  our  dinner  would  have  been 
impossible;  but  to-day,  so  far  has  the  public  sentiment  of  the 
world  advanced  that  not  only  hi  this  country  but  in  all  other 
countries  where  the  record  of  our  proceedings  goes,  it  will  be 
hailed  with  welcome  and  rejoicing. 

Let  me  give  you  an  instance  of  the  change  in  the  individual 
which  illustrates  exactly  what  I  mean.  When  Andrew  Nobel, 
the  founder  of  the  Nobel  prize  for  peace,  to  be  given  to  the  person 
who  had  done  most  for  the  promotion  of  peace  in  the  preceding 
five  years,  wrote  his  first  letter  to  the  Baroness  Von  Suttner,  one 
of  the  recipients  of  that  prize  in  later  years,  whose  memoirs  have 
recently  delighted  so  many  readers,  he  said,  "I  am  the  inventor 
of  dynamite  and  my  hope  and  belief  is  that  I  have  invented  or 
will  invent  an  explosive  so  powerful,  so  almighty,  that  when  two 
armies  meet  and  are  about  to  enter  into  battle  a  single  discharge 
on  either  side  will  blow  them  all  sky  high  and  so  put  an  end  to 
the  war."  Well,  he  lived  to  be  the  founder,  by  his  will,  by  a 


342  JUDICIAL   SETTLEMENT 

gift  of  a  great  part  of  his  fortune,  of  this  prize  for  the  promotion 
of  peace,  and  was  one  of  the  ringleaders  of  the  peace  party  in 
the  world.  It  was  his  example  that  Mr.  Carnegie  has  followed 
this  week  by  the  still  larger  foundation,  hi  establishing,  not  a 
prize,  but  a  working  force  for  the  promotion  of  peace  throughout 
the  world. 

Now,  you  will  observe  that  the  American  Society  for  the 
Judicial  Settlement  of  International  Disputes  has  nothing  in  its 
program  about  dynamite  or  about  armaments.  It  has  nothing 
to  do  with  the  limitation  of  armaments,  and  even  people  who 
believe  in  the  continuance  of  armaments  may  be  consistent 
workers  within  its  ranks.  I  believe  the  New  York  Evening  Post 
last  night  sneered  at  the  idea  of  my  being  one  of  Mr.  Carnegie's 
trustees,  because  two.  years  ago  at  a  peace  meeting  in  New  York 
I  had  the  audacity  to  recommend  battleships  for  the  United 
States.  Well,  as  that  paper  has  never  sneered  at  anything  or 
anybody  before,  I  can  submit  quietly  to  the  castigation. 

I  do,  in  a  certain  way  believe  in  armaments.  I  believe  the 
United  States  is  entitled  to  a  navy  that  shall  be  adequate  to 
protect  all  her  great  possessions,  outlying  as  they  are,  distributed 
all  about  the  globe;  adequate  for  the  protection  and  defense  of 
her  thousands  and  tens  of  thousands  of  miles  of  seacoast,  for  the 
protection  of  her  cities  that  are  on  the  seacoast,  and  still  more  for 
that  great  duty  which  is  to  fall  upon  her  of  policing  and  pro- 
tecting the  great  canal,  which,  thanks  to  the  energy  of  President 
Taft,  is  about  to  see  its  completion,  I  hope  while  he  is  still  Presi- 
dent. 

And  yet  I  am  a  consistent  advocate  of  peace.  It  is  true  we 
say  nothing  in  our  program  or  in  our  title  about  that.  At  least 
I  cannot  find  any  thing  in  that  long  title  about  it.  It  may  be  con- 
cealed there  in  that  long  array  of  words.  But  the  ultimate 
object  of  this  Society  and  of  every  kindred  society,  and  of  Mr. 
Carnegie's  new  trust  foundation  for  peace,  is  in  the  future,  per- 
haps the  distant  future,  nobody  knows  how  soon,  to  make  the 


CHOATE  343 

increase  of  those  armaments  unnecessary  and  their  limitation 
certain. 

We  cannot  do  everything  at  once.  That  is  a  mistake  which 
many  of  our  enthusiasts  are  always  insisting  upon  making,  as  if 
by  resolving  we  could  do  away  with  armament,,  or  put  an  end  to 
the  possibility  of  war.  All  these  reforms  are  matters  of  very 
slow  growth  indeed.  Think  how  long  it  took  for  the  institution 
of  slavery  so  to  arouse  the  indignation  of  the  American  people 
that  finally  they  determined  to  do  away  with  it  altogether.  Look 
at  all  the  other  reforms  which  have  enlisted  the  attention  of 
mankind.  They  are  all  step  by  step,  little  by  little,  here  a  little 
and  there  a  little,  until  at  last  the  conscience  of  mankind  is 
aroused  in  regard  to  them,  and  the  object  which  seemed  so  dis- 
tant at  first,  so  almost  impossible  to  its  critics,  is  at  last  and  sooner 
than  was  expected,  accomplished.  • 

Now  I  spoke  last  night  of  what  we  did  at  The  Hague,  at  the 
Second  Conference.  Perhaps  you  will  allow  me  to  say  one  or 
two  things  that  we  did  not  do,  that  we  could  not  do.  One  was 
in  this  very  matter  of  the  limitation  of  armaments.  The  sole 
object  of  the  calling  of  the  first  conference  by  his  august  Majesty 
the  Emperor  of  Russia,  was  to  see  what  could  be  done  about 
limiting  armaments.  Well,  the  first  conference,  composed  of 
some  of  the  finest  men  in  all  the  countries  of  the  world,  found 
themselves  unable  to  do  anything.  They  recommended  it  to 
the  consideration  of  the  nations.  The  Second  Conference  also 
found  it  impossible,  and  why?  We  found  ourselves  an  assembly 
of  the  representatives  of  forty-five  nations,  and  of  those  forty- 
five  nations  only  about  ten  had  any  armaments  at  all.  How  were 
the  other  thirty-five  to  take  the  matter  into  their  hands,  or  out 
of  the  hands  of  those  who  had  them?  But  we  busied  ourselves 
about  what  seemed  to  be  practical  and  possible,  and  that  was  so 
to  operate  upon  the  public  opinion  of  the  world,  and  to  recommend 
such  measures  as  should  in  the  future  render  such  armaments 
unnecessary.  Among  those  objects  was  the  foundation  of  this 


344  JUDICIAL   SETTLEMENT 

international  court,  to  which  all  nations  may  resort  for  the  peace- 
ful judicial  settlement  of  any  controversy  arising  between  them, 
and  so  obviate  the  necessity  of  war.  I  consider  that  a  very 
great  accomplishment  indeed. 

But  you  have  no  idea  how  difficult  it  is  for  forty-five  nations 
to  agree  to  anytning.  It  is  very  difficult  for  forty-five  individuals 
to  get  together  and  agree,  whether  they  are  Democrats  or  Republi- 
cans, or  a  mixture  of  both.  Let  me  give  one  illustration  of  the 
difficultites  that  lay  in  our  way.  Even  after  we  had  agreed  upon 
the  principle,  the  question  was  how  forty-five  nations  could  agree 
upon  a  statement  of  the  principle.  Let  me  give  you  a  very  slight 
illustration  of  that.  Our  instructions  from  the  Secretary  of 
State,  in  his  farseeing  wisdom,  were  to  procure  if  possible  the 
passage  of  a  resolution  by  which  future  peace  conferences  at  The 
Hague  might  work  automatically,  might  come  together  without 
depending  upon  the  call  of  any  particular  potentate;  might  regu- 
late their  own  movements  and  proceedings,  and  might  do  what 
they  thought  best  suited  to  the  emergencies  that  rested  upon 
them.  So  I,  as  the  first  delegate  of  our  American  delegation,  was 
instructed  to  prepare  such  a  resolution.  Well,  I  prepared  it  and 
made  it  pretty  stiff  and  strong,  clearly  stating  what  we  wanted, 
that  the  next  Conference  should  meet  at  a  given  date,  that  it 
should  elect  its  own  officers,  that  it  should  regulate  its  own  pro- 
ceedings, and  that  two  years  in  advance  of  the  date  fixed  for  its 
meeting  an  executive  committee  should  be  appointed  to  prepare 
its  program,  to  collect  the  views  of  the  different  nations  as  to 
what  ought  to  be  discussed  and  what  was  practicable  to  enter- 
tain, as  steps  forward  in  the  progress  for  peace,  so  that  when  the 
conference  came  together,  they  might  not  find  themselves  as  we 
did,  not  knowing  what  they  were  to  disscuss  but  all  ready  to  go 
to  work.  Well,  I  prepared  this  resolution  and  I  presented  it  to 
our  next  friend,  the  first  delegate  of  Great  Britain.  I  do  not 
think  I  betray  any  secrets  in  telling  this  whole  story,  because  it 
is  very  interesting  and  shows  the  difficulties  that  lie  in  the  way 


CHOATE  345 

even  of  the  best  reforms,  about  which  all  are  agreed.  The  first 
delegate  of  Great  Britain  said  he  was  heartily  hi  favor  of  it,  and  we 
went  together  to  the  President  of  the  Conference,  who  was  also 
the  first  delegate  of  Russia,  by  whose  authority  and  under  whose 
banner  the  Conference  was  being  held,  and  submitted  it  to  him. 
Well,  he  was  most  courteous,  most  kind,  most  gentle.  He  said 
that  he  could  not  consider  it  until  he  had  submitted  it  to  his 
government,  and  he  would  submit  it  to  his  government.  That 
was  one  step  in  advance.  He  said  he  would  let  us  hear  from  him 
when  he  heard  from  his  government. 

In  a  few  days  I  was  called  upon  by  the  first  delegate  of  Great 
Britain,  to  say  that  he  had  gone  a  little  too  far,  that  he  had 
Instructions  from  home  not  to  proceed  any  further  with  me  hi 
that  matter;  but  he  gave  me  his  cordial  good  wishes,  and  the 
promise  of  his  personal  support.  So  we  had  to  paddle  our  own 
canoe  after  that.  In  a  few  days  I  heard  from  the  President,  the 
first  delegate  of  Russia,  that  he  had  submitted  our  proposition 
to  his  government,  and  that  his  government  approved  the  idea. 
It  is  one  thing  for  Russia  or  any  other  government — I  speak  hi 
no  invidious  way;  it  might  be  our  own  government — to  approve 
an  idea,  and  another  thing  to  carry  it  into  practical  operation. 
But  we  were  delighted  to  know  that  his  government  approved 
the  idea.  Not  hearing  from  him  for  a  week  or  two,  as  the  time 
of  the  conference  was  running  and  we  were  coming  near  the  end 
of  our  labors,  as  we  supposed,  (although  we  were  kept  there  many 
months  after  that)  I  approached  him  again,  and  he  said,  "Well 
I  want  to  submit  it  to  some  of  the  leading  delegates."  I  was 
delighted  with  that.  So  he  gathered  some  of  the  leading  dele- 
gates together,  and  was  good  enough  to  invite  me  to  meet  with 
them,  and  he  read  my  proposition  to  them,  and  they  pulled  it  all 
to  pieces.  There  was  not  one  who  had  not  very  serious  fault  to 
find  with  it,  and  that  meeting  resulted  in  my  proposing  that  it 
should  be  referred  to  a  subcommittee  consisting  of  the  first  dele- 
gates of  Germany,  of  Great  Britain,  of  France  and  of  the  United 


346  JUDICIAL  SETTLEMENT 

States.  We  got  together,  and  we  rounded  off  all  the  corners.  All 
the  right  angles  were  turned  into  curves.  We  softened  the  lan- 
guage, we  mitigated  it  in  every  way  to  suit  us  four,  and  then  we 
presented  it  again  to  the  President  of  the  Conference.  We  thought 
it  immensely  desirable  to  have  it  brought  before  the  conference 
by  him,  with  all  the  prestige  of  Russia,  that  had  called  the  con- 
ference, and  he  said,  "Well,  I  must  now  call  the  forty-five  first 
delegates  together,  so  that  it  may  be  unanimous  when  we  bring 
it  before  the  conference." 

So  the  forty-five  first  delegates  came  together,  and  then  the 
difficulty  began.  I  find  that  the  great  difficulty  in  diplomacy  is 
phraseology.  I  dare  say  some  of  my  fellow  diplomats  up  and 
down  this  table  find  the  same  thing.  I  had  proposed  that  the 
third  conference  should  meet  on  the  fifteenth  day  of  June,  1915. 
Well,  the  German  representative  said  he  did  not  want  it  as  early 
as  that,  and  asked  to  have  it  put  not  earlier  than  the  fifteenth 
day  of  June,  1915.  The  English  representative  said  he  did  not 
want  it  postponed  as  late  as  that,  and  he  would  like  to  have  it 
not  later  than  the  fifteenth  of  June,  1915.  I  said  "Gentlemen, 
let  us  split  the  difference."  You  see  what  a  diplomatist  I  was 
"Let  us  say,  about  the  fifteenth  of  June,  1915."  Well,  that  was 
the  subject  of  long  discussion,  and  at  last  the  forty-five  delegates 
decided  that  "about"  was  altogether  too  definite.  That  would 
not  do  at  all.  "About  the  fifteenth  day  of  June"  or  "about 
June,  1915"  or  "about  1915"  would  not  suit  any  of  them.  But 
after  whole  hours  of  debate,  such  as  I  have  no  doubt  our  fellow 
diplomatists  here  indulge  in  with  the  learned  Secretary  of  State, 
we  came  to  the  conclusion  that  it  would  do  to  put  it  that  the  next 
Conference  shall  be  held  at  The  Hague  at  a  period  analogous 
to  the  period  that  has  elapsed  since  the  First  Conference.  And 
there  it  stands  to-day. 

Well  then,  about  the  appointment  of  an  executive  committee. 
Some  of  my  fellow  delegates  did  not  want  to  have  an  executive 
committee  appointed.  They  said,  "Why,  if  you  make  them  an 


CHOATE  347 

executive  committee,  they  will  ,do  something."  And  then  we 
suggested  that  it  should  be  called  an  international  committee. 
No,  they  did  not  want  that,  because  that  would  give  it  the  sanction 
of  all  the  world.  And  at  last  we  agreed  upon  the  word  "prepara- 
tory" committee,  and  in  that  way  it  passed.  All  the  corners 
were  rounded  off,  all  the  positive  expressions  disappeared;  but 
it  is  there  nevertheless,  and  it  stands  and  is  a  part  of  the  progress 
of  the  world  as  marked  by  the  Second  Conference,  that  at  a 
period  analogous  to  that  which  elapsed  between  the  First  and 
Second  Conferences,  which  was  seven  years,  there  shall  be 
another  Conference,  and  that  preparations  should  be  made  for 
it  by  a  committee  to  be  properly  constituted  by  the  nations,  and 
that  when  our  successors  come  together,  as  they  will  in  1915, 
to  discuss  the  affairs  of  the  world  again,  they  will  know  what  they 
come  for,  and  they  will  be  ready  to  go  to  work  and  not  wait 
thirty  days,  as  we  did,  before  finding  out  what  we  had  to  do. 
Now,  all  things  are  full  of  changes.  It  is  the  delightful  part 
of  human  life.  There  is  nothing  that  stands  still.  No  nation  that 
took  part  in  that  Conference  is  going  to  stand  still.  They  are 
all  going  to  be  ready  to  come  again,  and  come  with  minds  prepared 
to  take  a  further  forward  step.  And  by  and  by,  when  this 
Society  shall  have  done  its  work  as  best  it  may,  when  Mr.  Car- 
negie's trustees  shall  have  done  their  work  hi  educating  the  public 
mind  and  the  public  conscience  and  the  public  judgment,  there 
will  be  a  way  opened,  I  will  not  say  for  the  cessation  of  wars — I 
doubt  whether  there  is  any  gentleman  in  this  room  young  enough 
to  believe  that  no  further  war  will  happen  in  his  time — but  when 
a  great  mitigation  of  the  horrors  of  war,  and  a  great  diminution 
of  the  length  of  wars,  will  be  accomplished.  As  the  First  Hague 
Conference  passed  into  history,  and  the  Second  Hague  Conference 
passed  into  history,  so  this  Society  with  the  unpronounceable 
name,  the  American  Society  for  Judicial  Settlement  of  Inter- 
national Disputes,  will  have  hardly  yet  begun  its  history  when  we 
shall  have  a  third  Conference,  which  will  work,  I  know,  as  zeal- 


348  JUDICIAL   SETTLEMENT 

ously,  and  I  hope  as  successfully  and  as  efficiently  to  promote 
that  great  object  as  either  of  its  predecessors  has  done. 

THE  TOASTMASTER:  The  next  toast  is  "The  Army  and  Arbi- 
tration," which  is  to  be  responded  to  by  General  Frederick  D. 
Grant,  the  son  of  our  great  American  soldier,  who  bears  that  great 
name  modestly  and  worthily. 

RESPONSE  OF  GENERAL  FREDERICK  D.  GRANT,  U.  S.  A. 

Mr.  Toastmaster  and  Gentlemen,  I  appreciate  greatly  the 
honor  of  being  with  you  and  with  your  distinguished  guests  to- 
night, as  I  also  appreciate  your  cordial  greeting,  fully  realizing 
that  it  is  not  so  much  of  me  personally  as  it  is  a  tribute  to  the 
memory  of  my  father,  General  U.  S.  Grant. 

Being  asked  by  you  to  speak  a  few  words  before  this  Society 
for  the  Judicial  Settlement  of  International  Disputes,"  I  beg 
permission  to  quote  a  letter  written  by  General  Grant  to  the 
Universal  Peace  Union,  of  Philadelphia,  December,  1879,  which 
reads  as  follows: 

"Although  educated  and  brought  up  a  soldier,  and  probably 
having  been  hi  as  many  battles  as  anyone  else,  certainly  in  as 
many  as  most  people  could  have  taken  part  in,  yet  there  was  never 
a  tune  nor  a  day  when  it  was  not  my  desire  that  some  just  and 
fair  way  should  be  established  for  settling  difficulties,  instead  of 
bringing  innocent  persons  into  conflict,  and  withdrawing  from 
productive  labor  able-bodied  men  who,  in  a  large  majority  of 
cases,  have  no  particular  interest  in  the  subject  over  which  they 
are  contending.  I  look  forward  to  a  day  when  there  will  be 
courts  established  that  shall  be  recognized  by  all  nations,  which 
will  take  into  consideration  all  differences  between  nations,  and 
settle,  by  arbitration  or  decision  of  such  courts,  these  questions. 


U.  S.   GRANT. 


GRANT  349 

This  letter,  gentlemen,  was  an  expression  of  the  earnest  and 
heartfelt  wish  of  General  Grant,  similar  to  your  own,  to  settle, 
when  possible,  all  international  disputes  by  arbitration. 

Mr.  Andrew  Carnegie,  a  friend  for  whom  my  dear  father  felt 
the  highest  and  most  affectionate  regard,  has  won  the  admiration 
and  gratitude  of  the  world  by  his  recent  munificent  donation  for 
carrying  forward  successfully  the  splendid  work  begun  by  your 
Society  for  establishing  arbitration  courts,  those  courts  for  which 
General  Grant  expressed  his  wish  in  writing  thirty-one  years  ago. 

As  President  of  the  United  States  he  had  carried  out  this  wish 
when  he  took  his  firm,  conciliatory  attitude  in  the  dispute  of  the 
United  States  with  Great  Britain  over  the  American  claim  for 
damages  by  the  Confederate  privateer  Alabama.  Though  it  was 
a  time  when  the  settlement  of  that  dispute  by  force  of  arms 
would  have  been  popular  in  our  country,  General  Grant  deter- 
minedly so  guided  affairs  that  the  Alabama  claims  were  referred 
to  the  High  Joint  Commission,  and  the  national  differences  then 
were  adjusted  by  arbitration  in  a  manner  most  satisfactory  to 
the  people  of  both  countries,  the  United  States  and  Great  Britain. 

This  peaceful  settlement,  resulting  in  the  Geneva  Award, 
cemented  a  friendly  feeling  between  the  two  English-speaking 
nations  such  as  was  never  even  hoped  for  before. 

It  was  during  General  Grant's  administration  that  the  suddenly 
developed  trouble  with  Spain,  over  the  "  Virginius  affair,"  also 
was  peacefully  and  honorably  adjusted. 

In  the  year  1879,  during  his  journey  around  the  world,  and 
before  he  had  written  the  above  quoted  letter  to  the  Peace  Com- 
mission at  Philadelphia,  General  Grant  was  appealed  to  by  the 
Chinese  Government  to  act  as  arbitrator  between  the  Chinese 
and  Japanese  on  the  Loo  Choo  question,  which  question  was  then 
caiUjng  strained  relations  between  the  two  nations.  He  gave 
to  both  governments  such  wise  and  conciliatory  advice  that 
hostile  actions  between  China  and  Japan  were  warded  off  for 
many  years.  General  Grant  thereby  won  the  lasting  gratitude 


35°  JUDICIAL   SETTLEMENT 

of  the  people  of  both  countries,  whose  diplomatic  officials 
have  continued  to  show  honor  to  his  memory  ever  since  by 
visiting  and  placing  wreaths  on  his  tomb. 

I  feel  that  you  gentlemen,  who  are  so  nobly  planning  for  the 
establishment  of  international  courts,  have  asked  me  to  be  with 
you  here  not  only  as  the  son  of  my  father  but  also  as  a  representa- 
tive of  the  military  profession.  I  therefore  venture  to  say  a  few 
words  about  that  profession,  and  to  state  that  the  United  States 
army  is  not  an  instrument  of  aggression,  standing  ready  to  involve 
the  American  people  in  war,  as  proclaimed  by  some  mistaken 
persons.  On  the  contrary,  the  United  States  army  stands  for 
the  maintenance  of  peace.  Wars  are  brought  on  by  contentions 
and  strife  over  commercial  or  political  questions  in  which  the 
Army  has  no  voice  whatsoever. 

Recently  many  conventions  have  been  assembled  with  the 
view  of  promulgating  peace  ideas  and  the  arbitration  of  all 
differences  between  nations.  No  one  joins  more  heartily  with 
these  peace  commissioners  than  do  I  and  all  other  military  men. 
However,  as  long  as  human  selfishness  and  frailties  exist,  it  is 
possible  that  perfect  peace  may  not  always  abide,  and  that  rich 
nations,  lacking  military  strength,  might  find  themselves  the 
prey  of  covetous  and  aggressive  ones.  The  records  of  history 
do  not  indicate  the  probabilities  of  harmonious  intercourse  be- 
tween wealthy  nations  when  harmony  is  to  depend  entirely  upon 
the  good  will  and  justice  of  mankind. 

Some  enthusiastic  peace  advocates  discourage  the  maintain- 
ing of  armies  at  all,  even  for  purposes  of  defense,  and  are  inclined 
to  criticize  those  who  are  engaged  in  the  military  profession,  who 
really  use  their  best  efforts  to  uphold  peace  between  nations  and 
to  preserve  law  and  order  at  home. 

I  sincerely  believe  that  the  army  is  a  means  to  an  end,  and 
that  that  end  is  peace.  If  by  arbitration  courts  or  Hague  Con- 
ferences satisfactory  settlements  of  international  disputes  are 
reached,  the  army  will  still  be  necessary  to  uphold  those  decisions 


TAFT  351 

of  the  courts  as  well  as  to  prevent  lawlessness  and  internal  dis- 
orders. 

It  must  be  remembered  that  when  President  Grant  peacefully 
adjusted  questions  of  international  dispute,  the  fact  was  thor- 
oughly realized,  in  England  and  other  countries,  that  there  were 
in  the  United  Srates  a  million  veterans  of  our  civil  war,  all  loyally 
devoted  to  him,  their  leader  and  former  commander. 

I  assure  you,  gentlemen,  that  while  the  United  States  army 
stands  ready  to  serve  our  country  in  time  of  trouble  or  war,— 
which  tune  we  pray  may  be  far  distant, — while  it  is  the  business 
of  its  officers  and  men  cheerfully  to  risk  their  lives  if  necessary 
to  secure  for  our  nation  honor  and  respect  abroad,  and  to  main- 
tain peace  at  home,  the  army  is  always  ready  to  uphold  the 
Judicial  Settlement  of  International  Disputes. 

The  ruler  of  a  military  nation  called  the  First  Hague  Conference; 
a  soldier  of  America  won  the  first  great  victory  for  arbitration. 
Soldiers  do  not  bring  on  wars,  but  are  called  upon,  after  wars  are 
declared,  to  end  them. 

A  grim,  unflinching  soldier,  who  would  consider  on  the  field  of 
battle  nothing  but  "unconditional  surrender,"  though  later  giving 
generous  terms  to  his  defeated  foe  at  Appomattox,  when  called 
to  the  head  of  the  government  with  power  to  act,  surrounded  by 
political  contentions  and  strife,  was  the  first  to  say,  "Let  us  have 
peace." 

THE  TOASTMASTER:  Gentlemen,  we  will  now  be  addressed  by 
the  President  of  the  United  States. 


ADDRESS    OF   PRESIDENT   WILLIAM  HOWARD    TAFT 

We  hear  a  great  deal  nowa  days  of  movements  and  societies  and 
legislative  resolutions  in  favor  of  international  peace,  and  I 
assume  that  no  one  would  wish  to  be  put  in  the  position  of  deny- 
ing that  peace  contributes  greatly  to  the  happiness  of  mankind,  or 


352  JUDICIAL  SETTLEMENT 

of  advocating  war  as  an  institution  to  be  fostered  in  and  of  itself. 
To  say  that  one  is  in  favor  of  peace  is  not  much  more  startling 
than  to  say  that  one  is  in  favor  of  honesty,  in  favor  of  virtue,  in 
favor  of  good  and  opposed  to  evil.  That  from  which  the  world 
can  derive  the  most  benefit  is  a  practical  suggestion  leading  to 
more  permanent  peace.  Many  have  thought  that  this  could  be 
brought  about  by  an  agreement  among  the  powers  to  disarm, 
and  some  sort  of  a  convention  by  which  the  race  to  bankruptcy 
in  the  maintenance  of  great  armies  and  the  construction  of  great 
navies  might  cease  and  a  gradual  disarmament  follow.  Future 
events  may  justify  some  different  conclusion,  but  movements 
in  the  past  along  this  line  have  not  been  fruitful  of  practical 
results.  Bankruptcy  and  the  burdensome  weight  of  debt  involved 
in  continued  armament  may  bring  about  a  change  in  the  present 
national  tendencies.  Meantime,  however,  I  am  strongly  con- 
vinced that  the  best  method  of  ultimately  securing  disarmament 
is  the  establishment  of  an  international  court  and  the  develop- 
ment of  a  code  of  international  equity  which  nations  will  recognize 
as  affording  a  better  method  of  settling  international  controversies 
than  war.  We  must  have  some  method  of  settling  issues  be- 
tween nations,  and  if  we  do  not  have  arbitration,  we  shall  have  war. 
Of  course  the  awful  results  of  war  with  its  modern  armaments 
and  frightful  cost  of  life  and  treasure,  and  its  inevitable  shaking 
of  dynasties  and  governments,  have  made  nations  more  chary 
of  resort  to  the  sword  than  ever  before;  and  the  present,  therefore, 
because  of  this,  would  seem  to  be  an  excellent  time  for  pressing 
the  substitution  of  courts  for  force. 

I  am  glad  to  come  here  and  to  give  my  voice  in  favor  of  the 
establishment  of  a  permanent  international  court.  I  sincerely 
hope  that  the  negotiations  which  Secretary  Knox  has  initiated 
in  favor  of  an  international  prize  court — after  the  establishment 
of  that  court — will  involve  the  enlargement  of  that  court  into  a 
general  arbitral  court  for  international  matters.  It  is  quite 
likely  that  the  provisions  for  the  constitution  of  the  arbitral  court 


TATT  353 

will  have  to  be  different  somewhat  from  those  that  govern  the 
selection  of  members  of  the  prize  court,  but  I  am  glad  to  think 
that  the  two  movements  are  in  the  same  direction  and  are  both 
likely  to  be  successful. 

What  teaches  nations  and  peoples  the  possibility  of  permanent 
peace  is  the  actual  settlement  of  controversies  by  courts  of  arbi- 
tration. The  settlement  of  the  Alabama  controversy  by  the 
Geneva  arbitration,  the  settlement  of  the  seals  controversy  by 
the  Paris  Tribunal,  the  settlement  of  the  Newfoundland  fisheries 
controversy  by  The  Hague  Tribunal  are  three  great  substantial 
steps  toward  permanent  peace,  three  facts  accomplished  that 
have  done  more  for  the  cause  than  anything  else  in  history. 

If  now  we  can  negotiate  and  put  through  a  positive  agreement 
with  some  great  nation  to  abide  the  adjudication  of  an  inter- 
national arbitral  court  in  every  issue  which  cannot  be  settled 
by  negotiation,  no  matter  what  it  involves,  whether  honor,  terri- 
tory, or  money,  we  shall  have  made  a  long  step  forward  by  demon- 
strating that  it  is  possible  for  two  nations  at  least  to  establish  as 
between  them  the  same  system  of  due  process  of  law  that  exists 
between  individuals  under  a  government. 

It  seems  to  be  the  view  of  many  that  it  is  inconsistent  for  those 
of  us  who  advocate  any  kind  of  preparation  for  war  or  any  mainte- 
nance of  armed  force  or  fortification  to  raise  our  voices  for  peaceful 
means  of  settling  international  controversies.  But  I  think  this 
view  is  quite  unjust  and  is  not  practical.  We  only  recognize 
existing  conditions  and  know  that  we  have  not  reached  a  point 
where  war  is  impossible  or  out  of  the  question,  and  do  not  believe 
that  the  point  has  been  reached  in  which  all  nations  are  so  con- 
stituted that  they  may  not  at  times  violate  their  national  obliga- 
tions. 

Take,  thus,  the  question  of  the  Panama  Canal.  We  have  a 
property  which  when  completed  will  be  worth  $400,000,000 — 
at  least,  it  will  have  cost  us  that.  It  has  been  built  not  alone  to 
further  the  cause  of  the  world's  commerce,  but  also  to  bring  our 


354  JUDICIAL  SETTLEMENT 

eastern  and  western  seaboards  closer  together  and  to  secure  us 
the  military  benefit  enabling  our  naval  fleet  to  pass  quickly  from 
one  ocean  to  the  other.  Now,  the  works  of  the  canal  are  of  such 
a  character  that  a  war  vessel  might  easily  put  the  canal  out  of 
commission.  We  are  authorized  to  police  the  canal  and  protect 
it,  and  we  have  the  treaty  right  to  erect  fortifications  there. 
Fortifications  are  the  best  and  most  secure  method  of  protecting 
that  canal  against  the  attack  of  some  irresponsible  nation  or 
armed  force.  It  is  said  that  we  could  neutralize  the  canal  and  by 
inducing  all  nations  to  agree  not  to  attack  the  canal  secure  its 
immunity  from  injury.  But  the  trouble  is  that  nations  are 
quite  as  likely  as  men  to  violate  their  obligations  under  great 
stress  like  that  of  war.  It  seems  to  me  that  we  ought  to  put  our- 
selves in  a  position  with  reference  to  this  very  valuable  and  delicate 
piece  of  property  so  that,  should  any  nation  forget  its  obligation, 
we  will  be  hi  a  position  to  prevent  unlawful  injury  to  this  instru- 
ment of  commerce  so  valuable  to  the  world  and  so  indispensable 
to  us.  The  fact  that  we  fortify  the  canal  will  not  prevent  us 
from  discharging  all  international  obligations  that  we  may  have 
in  respect  to  it,  but  it  will  enable  us  to  defend  ourselves  in  its 
possession  against  the  act  of  every  irresponsible  force  or  nation. 
It  will  not  prevent  our  maintaining  its  neutrality  if  that  is  wise 
and  right. 

I  would  like  to  invite  attention  to  an  interesting  incident  within 
the  last  month.  Suppose  a  Dreadnought  under  the  command  of 
the  men  who  have  recently  been  in  command  of  Dreadnoughts 
were  to  seek  entrance  to  that  canal  by  force.  What  we  need  is 
something  to  defend  what  is  ours,  and  because  we  have  the  means 
of  defending  it  is  no  reason  why  we  should  not  neutralize  the  canal 
completely  if  that  be  wise. 

Again,  our  strong  feeling  in  favor  of  peace  it  seems  to  me  ought 
not  to  prevent  our  taking  the  proper  steps  under  existing  condi- 
tions to  maintain  our  national  defenses.  We  have  on  the  conti- 
nent of  the  United  States  excellent  coast  defenses  for  every  impor- 
tant harbor  that  an  enemy  could  enter.  We  probably  ought  to 


TAFT  355 

see  to  it  that  we  have  ammunition  and  guns  enough  for  ready 
use  in  case  of  emergency.  We  have  a  small  but  very  efficient 
army  of  80,000  men.  We  have  a  militia  of  about  125,000  men. 
The  Army  is  so  constituted  that  we  could  enlarge  it  from  a  skeleton 
organization  into  a  much  larger  body.  We  ought  to  have  more 
trained  officers,  so  as  to  furnish  the  teachers  to  a  larger  body  of 
men  that  war  might  require  us  to  enlist. 

There  has  been  a  good  deal  of  talk  in  the  papers,  and  some 
reference  in  Congress,  to  the  supposed  helpless  condition  of  this 
country  in  the  event  of  a  foreign  invasion.  I  venture  to  think 
that  much  more  has  been  made  of  this  than  the  facts,  calmly 
considered,  would  justify.  We  have  a  very  good  navy,  and  with 
the  opening  of  the  Panama  Canal  it  will  be  a  much  more  effective 
one.  It  would  be  useful  to  prevent  the  coming  of  an  invading 
army  across  the  seas. 

The  people  of  this  country  will  never  consent  to  the  maintenance 
of  a  standing  army  which  military  experts  would  pronounce 
sufficiently  large  to  cope  in  battle  with  the  standing  armies  of 
Europe,  should  they  get  by  our  navy,  avoid  our  harbor  defenses, 
and  descend  upon  our  coast.  If  this  leaves  us  in  a  position  of 
helplessness,  then  so  be  it.  For  those  who  understand  the  popular 
will  in  this  country  know  that  it  can  not  be  otherwise.  We  shall 
do  everything  in  the  way  of  wise  military  preparation  if  we  main- 
tain our  present  Regular  Army,  if  we  continue  to  improve  the 
national  militia,  if  we  pass  the  pending  volunteer  bill,  to  go  into 
operation  when  war  is  declared  and  not  to  involve  the  Nation  in 
a  dollar's  worth  of  expense  until  the  emergency  arises;  if  we  pass 
a  law,  now  pending  in  Congress,  which  will  give  us  a  force  of 
additional  officers  trained  in  the  military  art,  and  able  in  times  of 
peace  to  render  efficient  service  in  drilling  the  militia  of  the  States, 
and  in  filling  useful  quasi-civil  positions  that  are  of  the  utmost 
advantage  to  the  Government,  and  if  we  in  a  reasonable  time 
accumulate  guns  and  ammunition  enough  to  equip  and  arm 
the  force  we  could  enlist  under  our  colors  in  an  emergency. 

This  discussion  of  needed  military  preparations  does  not  sound 


356  JUDICIAL   SETTLEMENT 

very  well  at  a  peace  meeting,  but  the  trouble  about  a  peace 
meeting  is  that  it  seems  to  me  to  be  just  one-half  of  the  picture, 
and  I  want  to  introduce  the  whole  picture  in  order  that  what  is 
resolved  here  and  what  is  said  here  may  be  understood  to  be  said 
with  a  view  to  existing  conditions  and  to  the  practical  truth. 

I  have  said  this  much  in  order  to  allay  the  so-called  war  scare 
which  has  furnished  pabulum  for  the  newspapers  during  the  last 
few  days.  There  is  not  the  slightest  reason  for  such  a  sensation. 
We  are  at  peace  with  all  the  nations  of  the  world,  and  are  quite 
likely  to  remain  so  as  far  as  we  can  see  into  the  future.  Just  a 
little  more  forethought,  a  little  more  attention  to  the  matter  on  the 
part  of  Congress,  and  we  shall  have  all  of  the  Army  and  all  of  the 
munitions  and  material  of  war  that  we  ought  to  have  in  a  republic 
situated,  as  we  are,  3,000  miles  on  the  one  hand  and  5,000  miles 
on  the  other,  from  the  source  of  possible  invasion.  Our  Army 
is  much  more  expensive  per  man  than  that  of  any  other  nation, 
and  it  is  not  an  unmixed  evil  that  it  is  so,  because  it  necessarily 
restricts  us  to  the  maintenance  of  a  force  which  is  indispensable 
in  the  ordinary  policing  of  this  country  and  our  dependencies 
and  furnishes  an  additional  reason  for  our  using  every  endeavor  to 
maintain  peace. 

I  congratulate  this  association  on  the  recent  foundation  of  Mr. 
Carnegie,  by  which,  under  the  wise  guidance  of  Mr.  Elihu  Root, 
Mr.  Knox,  and  their  associates,  an  income  of  half  a  million  of 
dollars  annually  is  to  be  expended  in  the  practical  promotion  of 
movements  to  secure  permanent  peace.  The  wide  discretion  given 
to  the  trustees,  and  their  known  ability,  foresight,  and  common 
sense  insure  the  usefulness  of  the  gift. 

War  has  not  disappeared  and  history  will  not  be  free  from  it 
for  years  to  come,  but  the  worst  pessimist  can  not  be  blind  to  the 
fact  that  in  the  last  25  years  long  steps  have  been  taken  in  the 
direction  of  the  peaceful  settlement  of  international  controversies 
and  the  establishment  of  a  general  arbitral  court  for  all  nations 
is  no  longer  the  figment  of  the  brain  of  a  dreamy  enthusiast. 


BARTHOLDT  357 

THE  TOASTMASTER:  The  next  toast  is  "Human  Nature  and 
Peace,"  to  be  responded  to  by  Honorable  Richard  Bartholdt, 
Member  of  the  House  of  Representatives  from  Missouri. 

ADDRESS   OF  RICHARD   BARTHOLDT 

Mr.  Toastmaster  and  Gentlemen,  I  am  sure  none  of  you  have 
failed  to  observe  that  the  splendid  speeches  made  at  this  great 
convention,  and  the  princely  gift  of  Mr.  Carnegie  were  promptly 
and  adroitly  answered  by  a  war  scare.  After  a  century  and  a 
quarter  of  our  national  existence,  some  one  has  suddenly  made 
the  startling  discovery  that  we  are  totally  and  utterly  defenseless 
in  spite  of  the  fact  that  for  many  years  past  we  have  spent  60 
cents  of  every  dollar  raised  by  taxation  by  the  national  govern- 
ment for  war  results :  war  defenses  and  war  preparations.  But 
we  members  of  Congress  have  gradually  become  accustomed  to 
the  war  scares.  They  never  occur  when  Congress  is  not  in 
session,  but  usually  come  when  the  army  and  navy  budget  are 
to  be  voted  by  Congress,  and  never  at  any  other  time.  And  they 
always  have  their  effect.  Those  of  the  members  who  are  Republi- 
cans and  Democrats  from  conviction  and  not  alone  in  name,  may 
protest  against  what  seems  to  them  to  be  an  attempted  imitation 
in  a  republic  of  an  old  monarchical  trick,  but  such  protests  usually 
fail  of  their  purpose.  In  other  words  the  scare  always  has  its 
effect,  and  why?  Simply  because  human  nature  even  to  this 
day  seems  more  responsive  to  appeals  to  the  animal  in  us  than  to 
the  appeals  to  reason.  Fear  is  a  state  of  the  human  mind  which 
takes  no  counsel  of  reason.  The  same  is  true  as  to  that  particu- 
lar excitement  which  is  caused  by  the  beating  of  the  war  drum. 
A  regiment  passing  with  flying  colors  and  martial  music,  stirs 
us  more  than  even  the  most  eloquent  speech  for  peace,  though  the 
one  is  maintained  to  destroy  life  and  the  other  is  made  to  save 
it.  And  in  this  respect  human  nature  has  not  changed  much, 
in  spite  of  our  boasted  civilization.  The  same  natural  instincts, 


3  $8  JUDICIAL  SETTLEMENT 

if  unchecked,  would  lead  to  a  state  of  perpetual  civil  war.  There- 
fore they  have  to  be  controlled  and  checked  by  law.  Civilized 
society  has  circumscribed  these  impulses  and  instincts  of  the 
individual  by  moral  and  legal  obligations,  and  the  time  has  now 
come  when  we  propose,  by  an  extension  of  the  reign  of  law  to 
international  relations,  to  circumscribe  the  arbitrary  power  of 
governments  and  nations  as  well;  for  we  have  come  to  realize 
that  permanent  peace  cannot  be  secured  in  any  other  way. 

But  from  one  who  has  stood  on  the  firing  line  of  this  war  against 
war  you  probably  expect  a  report  of  our  progress.  I  beg  to  refer 
you  to  the  fact  that  Congress  passed  a  bill,  and  the  President 
signed  it,  providing  for  the  appointment  of  a  national  peace  com- 
mission; and  the  Inter-Parliamentary  Union,  at  the  last  session, 
held  at  Brussels,  this  summer,  unanimously  adopted  a  resolution, 
which  it  was  my  very  great  privilege  as  an  American  to  offe^ 
calling  upon  all  the  governments  of  the  world  to  appoint  similar 
peace  commissions.  The  Congress  of  the  United  States  has  also 
for  the  first  time  hi  its  history,  made  an  appropriation  for  the 
maintenance  of  the  Brussels  Bureau  of  the  Inter-Parliamentary 
Union.  That  great  organization  of  the  law-makers  of  the  world 
is  growing  among  all  the  parliaments,  and  is  gradually  being 
recognized  by  the  governments  as  a  semi-official  body.  More 
than  two  hundred  members  of  our  own  Congress  belong  to  the 
arbitration  group,  which  is  a  branch  of  the  Inter-Parliamentary 
Union.  And  more  than  two  thousand  law-makers  of  the  parlia- 
ments of  the  world  are  to-day  bending  every  energy  to  substitute 
law  and  justice  for  force  and  to  provide  and  furnish  the  necessary 
legal  machinery  for  that  holy  purpose. 

If  so  much  has  been  done  without  money  (and  it  is  impossible 
to  give  here  in  full  the  long  list  of  achievements)  I  ask  you  how 
much  more  may  we  not  be  able  to  accomplish  with  the  use  of  the 
necessary  funds  for  the  education  of  public  opinion?  I  predict 
that  our  so-called  antagonists  (and  by  those  I  mean  the  war 
enthusiasts)  will  wake  up  some  day  in  the  not  very  distant  future, 


LITTLETON  359 

and  find  that  they  and  not  we  are  the  dreamers,  that  they  have 
dreamed  a  dream  of  the  past,  of  an  era  of  blood  and  iron  and 
despotism  and  tyranny,  with  its  mailed  hand  and  guns  and 
armaments,  while  the  world  has  progressed  forward  and  upward 
to  a  higher  civilization,  a  civilization  which  has  come  to  regard 
the  instruments  of  death  and  torture  and  war  as  a  horrible  night- 
mare of  bygone  days. 

In  this  great  movement  towards  such  a  state  of  civilization, 
the  United  States  has  taken  the  lead  and  with  a  President  who 
had  previously  declared  that  he  could  see  no  objection  to  sub- 
mitting even  questions  of  honor  to  arbitration,  and  who  has  just 
now  in  our  presence  taken  the  momentous  forward  step  of  pro- 
nouncing in  favor  of  negotiating  a  treaty  "to  abide  the  adjudi- 
cation of  an  international  arbitral  court  in  every  issue  which  cannot 
be  settled  by  negotiation  no  matter  what  it  involves,  whether 
honor,  territory  or  money,"  with  so  great  a  President,  I  say,  the 
United  States  is  sure  to  continue  its  leadership  in  this  great  cause. 

THE  TOASTMASTER:  The  next  toast  is  "Popular  Government 
as  the  Solution  of  War,"  which  will  be  responded  to  by  Mr. 
Martin  W.  Littleton. 

RESPONSE  OF  MARTIN  W.  LITTLETON 

Mr.  Toastmaster,  Mr.  President,  and  Gentlemen  of  the  Society : 
I  do  not  think  it  out  of  the  way  to  call  attention  to  the  fact  that 
peace  will  probably  find  its  way  upon  the  face  of  the  earth  with 
the  advancing  line  of  popular  government;  that  when  the  power 
to  rule  settles  itself  down  broadly  in  the  people,  when  rulership 
is  no  longer  the  privilege  of  the  few,  the  question  of  peace  will 
have  reached  a  point  where  the  entire  human  race  will  demand 
it  as  a  principle  of  popular  government.  By  no  means  the  least 
interesting  thing  about  the  recent  munificence  of  Mr.  Carnegie 
is  the  attitude  which  it  indicates  that  men  are  taking  towards  the 


360  JUDICIAL   SETTLEMENT 

condition  of  their  fellows,  towards  the  uplifting  of  the  race, 
towards  the  betterment  of  the  world.  The  gift  itself  is  munificent, 
the  income  will  be  splendid,  its  uses  will  be  noble,  the  results 
no  doubt  will  be  justified  by  every  anticipation.  But  the  atti- 
tude which  it  discloses — the  attitude  not  only  of  Mr.  Carnegie 
but  of  other  men  in  this  vast  collective  industry  which  the  world 
has  created — the  attitude  which  he  shows  by  bestowing  this  gift, 
is  quite  as  significant  as  the  uses  and  effects  of  that  gift  will  be 
in  its  application  to  the  solution  of  questions  of  war.  Gradually, 
the  world  over,  rulership  is  ceasing  to  be  personal.  Gradually 
the  power  to  rule,  the  power  to  control  the  destiny  of  the  country 
whatever  country  it  may  be,  is  settling  itself  down  into  the  hearts 
and  bosoms  of  the  governed,  and  that  period  will  not  pass  in  our 
time  and  generation.  The  growth  of  government  by  reason, 
the  growth  of  popular  government  under  whatever  forms  it  may 
have  advanced,  the  elevation  of  the  plain  man  to  that  place  in 
human  society  which  will  exalt  his  ideals  and  help  the  State; 
the  letting  into  his  mind  of  the  light  of  that  knowledge  which 
enables  him  to  see  that  as  he  lives  and  acts,  so  lives  and  acts 
his  government;  the  conversion  of  the  armed  forces  of  the  earth 
by  the  collective  development  of  the  human  race  into  an  indus- 
trial army,  which  must  after  all,  be  the  outcome  of  the  patient 
processes  of  peace  that  are  at  work  night  and  day;  the  withdrawal 
of  man's  greatest  genius  from  the  malign  service  of  war,  and  the 
dedication  of  it  to  the  noble  pursuits  of  peace;  the  abolition  of 
social  and  political  servitude,  and  the  substitution  of  unfettered 
economic  freedom;  the  creation  of  that  fraternity  which  teaches 
us  that  we  are  dependent  one  upon  another,  the  divorcement  of 
Church  from  State;  the  awakening  from  that  dull  political  torpor 
in  which  the  whole  world  seemed  to  slumber,  and  the  vast  reach 
of  social,  political  and  moral  activity  which  is  moving  under- 
neath all  the  races  of  the  earth,  these  are  some  of  the  fruits  of 
advancing  popular  government,  and  in  these  dynamic  influences 
will  be  found  the  realization  of  that  thing  which  shall  flower  and 


LITTLETON  361 

fruit  finally  as  the  result  of  the  work  of  societies  like  this,  the 
acknowledged  necessity  of  the  entire  world  that  peace  after  all 
must  come  with  the  enlightenment  of  men. 

Now  the  work  of  our  generation  and  of  those  who  will  follow  us 
is  to  discipline  our  will  and  our  passions  until  they  shall  be- 
come the  vital,  sensitive  medium  through  which  patriotism  shall 
reach  out  and  lay  hold  on  the  government  and  conduct  it,  to 
exalt  the  common  ideal  until  it  shall  embody  the  enduring  princi- 
ples of  justice;  to  sternly  set  our  faces  against  those  who  would 
debauch  the  government  to  their  selfish  ends,  against  those  who 
would  arrest  its  development  by  using  it  as  an  instrument  of 
ambition.  Ours  is  a  task  to  confine  these  untried  energies  to 
the  pathway  of  progress;  to  save  them  from  the  withering  influence 
of  the  Bourbon  upon  the  one  hand,  and  of  the  adroit  adventurer 
upon  the  other.  Ours  is  the  duty  vigilantly  to  guard  this  vast  and 
untested  energy  of  popular  government  until  its  entire  momen- 
tum can  be  directed  to  the  uplifting  and  upbuilding  of  the  race. 

American  citizenship  is  of  itself  an  example  of  the  extent  to 
which  popular  government  has  already  gone.  It  seems  to  be  a 
composite  of  all  that  is  best  in  history.  This  ideal  is  literally  a 
visible  figure  before  the  eyes  of  the  American  youth.  With  it 
he  has  been  a  soldier  in  all  the  wars  for  freedom.  He  has  been 
a  statesman  in  all  the  councils  where  liberty  was  discussed.  He 
has  been  a  poet  wherever  men  dreamed  of  the  happiness  of  the 
race.  He  has  been  an  orator  in  all  the  forums  where  democracy 
was  on  trial.  And  this  ideal  is  now  before  the  aspiring  of  their 
lands  wherever  popular  government  is  wished  for.  It  has  pleaded 
for  the  cause  of  popular  government  in  northernmost  Norway. 
Its  figure  may  be  seen  through  the  red  disorder  of  France.  Its 
eloquent  appeals  can  be  heard  in  the  Cortes  of  Spain;  for  its 
speech  is  understood  of  all  men  and  its  medium  is  universal. 
It  is  for  him  who  is  inspired  with  this  ideal  to  catch  the  last,  the 
longest  and  the  best  note  of  enlightenment  from  every  quarter 
of  the  earth.  It  is  for  him  to  make  the  Twentieth  Century  that 


362  JUDICIAL  SETTLEMENT 

resplendent  period  of  which  it  shall  be  said  that  Liberty  and 
Peace  went  up  and  down  the  earth  building  their  kingdoms  hi  the 
hearts  of  men,  gathering  the  harvest  of  genius  and  toil;  that 
Reason  struck  from  the  hand  of  Force  the  sword  of  Hate  and 
plucked  from  the  heart  of  War  the  germ  of  Greed;  that  con- 
science smote  the  thoughts  of  wrong,  and  filled  the  mind  with 
mercy  and  restraint,  in  which  the  people  of  all  lands  and  tongues 
turned  their  faces  toward  the  light  and  advanced  along  the 
luminous  pathway  which  leads  to  a  destiny  beyond  the  reach  of 
our  poor  vision  but  within  the  providence  of  God. 

THE  TOASTMASTER:  The  previous  toasts  have  been  responded 
to  by  statesmen,  diplomats  and  soldiers.  The  next,  which  is 
"The  New  Mission  of  America  as  The  Peacemaker,"  will  be 
responded  to  by  one  who  is  poet,  publicist  and  novelist,  Mr. 
Thomas  Nelson  Page. 

AMERICA  AS  A  PEACE  MAKER 

THOMAS    NELSON    PAGE 

Mr.  Toastmaster  and  Gentlemen,  The  truth  is  that  man  is,  at 
heart,  a  fighting  animal.  We  say  animal  when  we  apologize  for 
man,  and  in  so  doing  we  flatter  ourselves  and  avoid  saying  beast, 
which  we  might  say  with  equal  truth  if  we  were  to  consider  the 
natural  ferocity,  at  least,  of  the  Anglo  Saxon. 

Hobbes  maintained  that  Man's  natural  state  was  war,  which 
is  but  another  way  of  saying  the  same  thing. 

But  my  later  observation  and  reflection  have  satisfied  me  that 
Hobbes  is  not  far  from  right  when  he  declares  that  man's  natural 
state  is  war,  and  that  the  departure  from  this  state  represents 
an  advance  which  is  incalculable  and  may  be  likened — to  quote 
my  old  Professor  of  Ethics — to  a  state  of  grace. 

There  is  something  in  all  of  us  that  responds  to  the  magic  of 
military  prowess.  That  wise  observer,  Dr.  Johnson,  once  said: 


PAGE  363 

"Every  man  thinks  meanly  of  himself  for  not  having  been  a 
soldier  or  been  at  sea,"  and  when  Boswell  said  "Lord  Mansfield 
would  not  be  ashamed  of  it,"  he  replied,  "Sir,  if  Lord  Mansfield 
were  in  the  presence  of  generals  and  admirals  who  had  seen  service 
he  would  wish  to  creep  under  the  table  ...  If  Socrates 
and  Charles  XII  of  Sweeden  were  in  company,  and  Socrates 
should  say,  'Follow  me  and  hear  a  lecture  on  Philosophy,'  and 
Charles  XII  should  say,  'Follow  me  and  help  me  to  dethrone 
the  Czar,'  a  man  would  be  ashamed  to  follow  Socrates." 

We  preen  ourselves  on  our  civilization;  on  our  wonderful  im- 
provement; and  our  advance  over  our  ancestors.  We  hold  con- 
ventions and  banquets;  and  make  a  tremendous  stir,  under  the 
impulse  of  a  few  chosen  spirits  who  are  illuminated  with  a  better 
light  than  that  which  ever  reaches  the  minds  of  most  of  us  hi  the 
direction  of  securing  something  that  is  better  than  we  have  had 
before. 

And  then,  when  we  have  laid  a  very  small  egg,  we  do  a  great 
deal  of  cackling  and  crowing;  for  the  fact  is  that  some  tunes  we 
crow  when  we  have  had  very  little  to  do  with  the  laying  of  the 

egg- 
So  contradictory  a  creature  is  man  that  those  who  do  not  con- 
tent themselves  with  the  abstract  principle  of  the  righteousness 
of  peace  and  who  seek  by  any  active  means  to  inculcate  their 
pacific  views  are  scouted  as  idealists  and  ridiculed  as  fools  by  the 
rest  of  the  world  who  follow  the  natural  bent  of  their  inclina- 
tions. For  there  is  a  great  element  and  a  powerful  one  which 
rests  on  the  dictum  that  war  is  not  only  inevitable,  but  healthy- 
that  war  develops  what  are  termed  "the  sterner  virtues" — that 
the  idea  of  a  world-peace  is  a  dream,  and  would  steep  the  world 
inevitably  in  a  worse  condition  than  it  has  ever  been  in  since 
the  dawn  of  civilization.  Their  contention  has  this  much  of 
truth  in  it — that  certainly  man  has  not  yet  reached  the  time  when 
reasonable  peace  can  be  declared  and  established  on  even  the 
sound  foundation  of  reason  alone.  One  Nation  cannot  disarm 


364  JUDICIAL  SETTLEMENT 

while  other  nations  remain  armed,  and  threatening,  and  so  we 
go  groaning  and  sweating  on  under  the  burden  of  ever  increas- 
ing armaments  and  in  the  shadow  of  ever  threatening  war. 
Eighty-eight  and  one-half  per  cent  of  our  expenses  are  due  to 
war,  and  the  fear  of  war.  We  have  not  yet  reached  the  time 
when  either  men  or  women  can  go  unarmed  from  one  end  of  the 
earth  to  the  other;  for  robbery  and  violence  still  hold  their  un- 
hallowed sway  over  large  portions  of  the  earth's  surface  and  in  a 
large  proportion  of  the  hearts  of  men.  Still  the  movement  goes 
on,  however  slowly.  Nor  should  we  be  discouraged  if  we  are 
told  that  it  has  moved  slowly.  Indeed,  it  appears  to  me  that 
the  propaganda  for  universal  peace  has  moved  with  more  rapidity 
than  any  other  moral  movement  in  our  time.  Reform  in  the 
direction  of  banning  war  must  necessarily  move  slowly;  for  it 
goes  counter  to  man's  aspiration  for  glory,  his  desire  for  domina- 
tion, and  his  lust  for  gain.  Yet,  little  by  little  the  Upas  tree 
is  being  lopped  of  the  roots  from  which  it  sprang — the  idea  of 
humanity  is  extending  like  the  genii  which  the  fisherman  found 
in  the  pot  and  let  loose. 

The  branch  which  has  sprung  from  Jesse,  with  so  small  a  begin- 
ning that  it  might  be  likened  to  the  mustard  seed,  has  grown  until 
it  is  a  great  vine  that  has  spread  over  the  earth — the  greatest  of 
all  the  trees — in  whose  branches,  and  beneath  whose  shelter  the 
nations  are  beginning  to  rest.  The  general  sentiment  against 
pillage  and  the  seizure  of  territory  by  force  is  likewise  extending. 
The  vast  costliness  of  it  all  is  beginning  to  awaken  the  sense — 
the  common  sense  of  the  people,  and  finally  the  slow-growing 
sense  of  justice  is  beginning  to  take  root  in  the  minds  of  the 
peoples  of  the  earth. 

Deep  down  in  our  hearts  is  the  conviction  that  when  the  golden 
age  shall  come,  there  will  be  as  in  the  first  golden  age  universal 
peace.  The  Christian  calls  it  the  millennium,  and,  however 
little  he  works  for  it,  prays  with  more  or  less  fervor  for  its  ap- 
pearance. The  cynic  assures  us  with  what  appears  fairly  good 


PAGE  365 

reason,  that  this  blessed  consummation,  when  the  wolf  shall 
dwell  with  the  lamb,  and  the  leopard  shall  lie  down  with  the  kid; 
and  the  calf  and  the  young  lion  and  the  f  atling  together,  is  a  good 
deal  more  than  a  thousand  years  hence  even  now. 

And  yet  why  should  it  be  so?  Has  not  the  rule  been  set  down? 
To  use  the  words  of  the  Hebrew  prophet,  has  not  a  high-way 
been  opened  from  the  Assyria  of  the  Dark  Ages,  like  as  it  was  to 
Israel  in  the  day  when  he  came  up  out  of  the  land  of  Egypt? 
Are  we  not  hi  sight  of  the  promised  land  of  peace?  Has  there 
not  come  forth  a  rod  out  of  the  Stem  of  Jesse? 

Tune  was  when  the  rule  was  not  known — when  the  laws  were 
not  understood,  when  universal  peace  was  not  possible,  but  that 
time  has  passed.  Whatever  else  we  may  claim,  whatever  else  we 
may  think,  we  know  now  that  the  way  is  made  plain,  that  there 
is  but  one  thing  which  prevents  its  being  followed,  and  that  is 
hypocrisy.  The  only  way  to  make  peace,  and  to  keep  peace  made, 
is  to  do  it. 

The  aspiration  for  peace — yes,  for  universal  peace, — has  been 
the  gift  of  God  to  high  and  unselfish  souls  through  all  the  ages, 
but  the  way  from  Assyria  was  not  yet  open.  The  tongue  of 
the  Red  Sea,  the  sea  of  blood,  has  not  yet  been  destroyed. 
But  little  by  little,  God  with  his  mighty  wind  has  shaken  his 
hand  over  the  river  and  men  are  beginning  to  go  dry  shod  over 
the  places  where  once  there  was  no  passage,  and  only  the  sea 
of  blood  hemmed  them  'round. 

The  first  great  pathway  that  was  opened  was  through  diplo- 
macy. For  ages  and  ages  it  was  the  only  means  by  which  wars 
could  be  prevented  and  peace  maintained  among  the  nations. 
Out  of  it  grew  a  great  system  which  played  its  benificent  part 
for  long,  long  centuries.  The  sending  of  envoys  and  ministers 
and  ambassadors  represented  amity  between  the  nations  and  led 
to  alliances — the  withdrawal  of  them  meant  the  rupture  of  those 
relations  of  peace  and  the  approval — or,  at  least,  the  implied 
threat  of  war.  Ambassadors  were  given  full  power  and  repre- 


366  JUDICIAL  SETTLEMENT 

sented  in  their  person  the  sovereigns  of  the  countries  whence  they 
were  sent. 

Then  civilization  took  a  new  step.  As  steam  and  electricity 
brought  the  countries  nearer  together  they  bound  them  closer  to- 
gether and  the  diplomatic  functions  changed.  The  minister  and  even 
the  ambassador  remained  in  such  close  touch  with  his  own  country 
that  he  was,  so  to  speak,  in  daily  and  hourly  conference  with  his 
government.  He  retained  the  title  and  much  dignity,  but  from 
economic  and  natural  causes  he  no  longer  had  the  power  which 
he  once  possessed.  His  usefulness  remained  but  his  power  had 
passed.  In  his  dignified  and  honored  position  he  still  had  the 
opportunity  of  presenting  directly  all  matters  relating  to  his 
country  and  of  exercising  in  such  matters  .that  direct  personal 
influence  which  can  only  come  from  direct  personal  intercourse — 
thus,  his  function  still  remains  most  valuable,  if  not  invaluable, 
but  in  its  most  powerful  age,  diplomacy  was  still  only  diplomacy 
When  any  grave  question  reached  the  stage  where  diplomacy  failed 
— always  from  its  shelter  appeared  the  grim  visage  of  war,  and 
indeed  like  a  spectre  it  ever  stood  in  the  background;  so  that  men 
found  that  something  better  than  diplomacy  was  needed- 
better  than  diplomacy  and  beyond  diplomacy,  and  the  greatest 
step  taken  in  all  tune  heretofore  was  that  which  extended  if  it 
did  not  create  generally  the  beneficent  method  of  settling  inter- 
national disputes  by  arbitration. 

Possibly,  the  greatest  work  of  this  generation  up  to  the  present 
time  has  been  first  the  dissemination  throughout  Christendom, 
and  even  beyond  Christendom,  of  the  idea  of  the  arbitral  settle- 
ment of  international  disputes.  The  permanent  establishment 
of  the  great  tribunal  at  The  Hague  is  one  of  the  mile  posts  on  the 
rugged  and  toilsome  way  to  the  complete  civilization  of  the 
world.  The  work  that  it  has  already  performed  is  immense,  the 
good  that  it  has  already  accomplished  is  incalculable.  During 
the  period  since  its  establishment  many  diffcult  and  delicate 
questions  have  been  settled  by  arbitration.  Many  dangerous 


PAGE  367 

situations  have  been  eliminated  by  the  wise  and  beneficent 
action  of  that  great  tribunal  and  yet,  even  those,  among  whom 
I  number  myself,  who  regard  this  mode  of  settlement  as  being 
the  greatest  advance  which  civilization  has  made  up  to  the  present 
tune  in  the  direction  of  the  settlement  of  International  disputes, 
recognize  the  fact  that  such  a  tribunal  has  its  limitations;  that 
arbitral  settlement  at  the  best,  and  this  is  arbitral  settlement  at 
the  best,  is  based  rather  upon  principles  of  equity  modified  by — 
what  shall  I  term  it? — the  exigencies  of  diplomacy,  which  leave  the 
result  not  as  a  just  and  complete  adjudication  of  the  questions 
presented  on  principles  of  justice  which  shall  govern  after  decisions 
and  gradually  form  a  high-way  along  which  the  nations  shall 
march  in  peace  and  safety,  but  which  settle  the  particular  ques- 
tion on  principles  which  can  hardly  be  said  to  have  at  least  as 
yet  the  compelling  power  of  a  code  of  international  law. 

Man  is  undoubtedly  the  creature  of  habit,  physically,  mentally 
and  perhaps  even  spiritually.  He  follows  the  pathway  of  habit 
with  an  instinct  hardly  less  unreasoning  than  that  of  the  lower 
animals.  To  this  habit,  I  believe,  shackled  upon  him  through 
the  ages,  having  its  roots  back  hi  the  period  when  he  fought  for 
existence  like  a  brute  with  the  other  brutes  of  the  forest  and  the 
plain,  he  owes  his  feeling  for  war.  It  is  curious  and  it  is  tragic 
how  ineradicable  is  its  influence  over  him — how  unconquerable 
its  domination.  It  is  quite  the  usual  thing  to  hear  the  most  high 
minded  and  pacific  men  and  the  most  tender  and  sympathetic 
women  declare  with  absolute  conviction,  not  only  the  admitted, 
but  not  wholly  pertinent  truth  that  wars  can  never  be  wholly 
prevented,  but  the  further  statement  that  wars  are  necessary 
for  the  development  of  human  character.  Wars  are  unques- 
tionably going  to  continue  in  some  form,  but  please  God,  at  long 
and  ever  growing  intervals;  nay,  wars  may  be  necessary  under 
some  imaginable  conditions,  so  that  there  may  in  truth  be 
even  what  we  are  accustomed  to  call,  of  ten  without  consideration, 
a  Righteous  War;  but  that  war  is  necessary  for  the  development 


368  JUDICIAL  SETTLEMENT 

of  the  best  type  of  character,  individual  or  national,  is  an  asser- 
tion against  which  the  history  of  the  human  race  protests  with 
eloquence.  The  abolition  of  war  is  the  one  greatest  blessing  that 
could  be  given  to  the  human  race.  The  man  who  could  devise 
a  means  to  prevent  war  would  be  the  greatest  benefactor  of  man- 
kind in  all  the  ages.  The  man  who  would  do  most  to  prevent 
it  would  do  most  to  benefit  the  race.  I  believe  that  most  of  our 
utterances  on  this  subject  of  the  necessity  of  war,  are  the  result 
of  habit,  and  a  considerable  portion  of  the  residue  are  the  result 
of  ignorance  and  of  inability  to  reason.  We  confuse  the  spirit 
of  patriotism  with  that  of  belligerency,  of  manliness  and  courage 
and  independence,  with  that  of  truculence.  It  is  a  singular  and 
a  sad  reflection  that  we  go  to  church,  and  in  the  name  of  the 
Prince  of  Peace,  pray  God  to  give  unity  and  concord  to  all  the 
nations  on  earth — our  English  bretheren  pray  more  specifically 
that  He  will  give  peace  in  our  tune — and  then  when  we  leave  its 
sacred  portals  we  begin  immediately  to  talk  about  the  impossi- 
bility, and,  indeed,  the  inadvisability  of  banishing  war  from  the 
earth. 

I  think  it  hardly  likely  that  wars  will  be  banished  from  the 
earth  until,  at  least,  the  professedly  Christian  portion  of  the 
church-going  population  shall  recognize  the  fact  that  to  do  this 
is  probably  hi  the  sight  of  Hun  who  rules  the  hearts  and  minds 
of  men  close  to  sheer  hypocricy;  and  that  to  pray  for  peace  and 
to  advocate  war  is  a  mockery  of  the  most  High  God. 

If  it  be  necessary  to  argue  this  proposition,  I  would  say  briefly 
that  the  higher  and  the  nobler  the  warrior  may  be,  the  more  he 
deplores  war,  and  the  more  earnestly  and  faithfully  he  strives 
for  peace.  It  was  well  said  this  evening  that  mainly  "soldiers 
don't  make  wars;  they  end  them."  But  I  ask  you  to  mark  that 
this  is  a  modern  idea  and  a  promising  fruit  of  the  modern  move- 
ment for  peace.  However,  against  the  highest  and  the  noblest 
warrior  who  ever  drew  a  sword  in  a  righteous  cause,  you  may 
find  men  of  peace  to  whom,  in  all  but  military  science,  he  him- 


PAGE  369 

self  would  look  up  as  a  master.  Nor  does  their  pacific  calling 
detract  from  their  character.  There  is  one  whom  we  call  the 
Prince  of  Peace,  withstanding  his  power  to  call  to  his  aid  twelve 
legions  of  angels,  ordered  his  follower  to  sheath  his  sword  and  in 
face  of  Roman  tyranny  and  Ecclesiastical  persecution  rested  his 
cause  on  its  great  moral  foundation  of  unselfish  love.  He  died 
that  men  might  live — died  calling  upon  God  to  forgive  his  ene- 
mies thereby  setting  forever  the  seal  of  denial  upon  the  prepos- 
terous proposition  that  war  is  necessary  for  the  development  of 
character. 

But  let  us  pass  from  the  consideration  of  individual  character 
to  that  of  national  character.  So  far  from  war  being  the  developer 
of  national  character,  the  whole  range  of  history  will  show  the 
contrary.  The  most  notable  example  of  ta  war-like'  people  among 
the  nations  of  the  earth  in  all  the  course  of  history  is,  of  course, 
that  of  Rome.  She  became  the  undisputed  mistress  of  the  world, 
and  she  is  always  pointed  to  as  the  great  example  of  the  benefits 
to  be  derived  from  a  great  military  establishment.  It  is  true  that 
Rome  conquered  the  world,  as  it  is  termed  in  the  common  speech, 
but  her  military  control  of  the  world  was  a  very  temporary 
one.  Her  prestige  as  a  great  military  power  was  but  for  a  day 
in  the  purview  of  the  life  of  peoples,  and  during  that  particular 
period  of  her  history,  however  splendid  it  may  appear  on  Livy's 
pictured  page,  or  gilded  with  the  romance  of  the  novelist  and 
the  imaginative  historian,  her  domestic  affairs  were  hi  a  deplorable 
condition.  The  period  of  her  virtue  was  that  of  the  Republic. 
Her  conquest  of  the  world  was  due  not  to  her  soldiers;  not  to  her 
arms;  but  to  the  genius  of  her  generals,  and  while  it  may  have 
borne  civilization  in  the  wake  of  her  eagles,  and  thereby  event- 
ually have  benefitted  the  world,  it  was  at  the  sacrifice  of  all 
except  power  and  fame  which  men  can  aspire  to.  It  was  during 
the  period  of  her  military  prestige  that  republican  government 
perished  from  among  the  Roman  people;  that  domestic  life  and 
public  and  private  virtue  sank  to  the  lowest  ebb  that  the  Roman 


370  JUDICIAL   SETTLEMENT 

people  ever  knew;  that  her  best  citizens  were  proscribed  and 
put  to  death,  and  the  emperors  themselves  were  the  creatures 
and  toys  and  the  victims  of  their  praetorian  guard. 

Rome's  true  conquest  of  the  world  came  after  her  legions  had 
been  driven  from  across  the  English  channel  to  the  south  of  the 
Po — after  the  barbarians  whom  she  had  conquered  had  swept 
down  upon  her  and  received  her  laws,  her  literature  and  her  art. 
It  was  through  her  appeal  to  the  intellect  and  the  imagination  of 
humanity  tnat  she  asserted  her  final  triumph  over  Europe  and 
over  the  world.  The  same  thing  will  be  found  in  the  history  of 
other  nations  from  the  tune  of  Assyria  down.  It  was  not  their 
military  establishment  which  gave  them  power,  but  the  work  of 
their  minds  which  established  them  at  the  head  of  other  nations. 

It  was  when  the  Roman  armies  had  conquered  from  Ethiopia 
to  the  Ultima  Thule,  that  Cato  the  Younger,  having  seen  the 
liberties  of  his  country  fall  in  the  moment  of  her  supreme  military 
glory,  robbed  the  conquering  Caesar  of  the  honor  of  saving  his 
life.  "Victrix  Causa  Diis  Placuit,  sed  Victa  Catoni." 

Nor  is  Rome  the  only  country  where  liberty  has  fallen  a  victim 
to  military  ambition.  It  was  the  same  way  in  Greece.  Sparta 
was  the  only  absolute  military  power  of  Greece,  but  her  military 
establishment,  though  at  that  time  the  head  of  the  world,  failed 
to  save  her,  and  she  perished  before  Athens  with  her  Art,  her 
Science,  and  her  Philosophy.  It  was  not  in  the  days  of  her 
supremacy  as  a  military  power  that  Greece  attained  the  highest 
point  of  her  glory  and  the  renown  of  her  usefulness  to  the  nations. 
She  withstood  the  greatest  military  establishment  that  the 
world  had  then  known — possibly,  that  the  world  has  ever  known 
— when  with  her  citizen  soldiery  and  sea-men,  she  met  the  armies 
of  Xerxes  at  Thermopilae  and  at  Marathon  and  swept  his  navy 
from  the  seas  at  Salamis.  It  was  when  Athens  allowed  her  lust 
for  power  to  carry  her  on  and  undertook  to  pursue  her  conquests 
against  her  commercial  rivals,  that  her  decline  began  beneath 
the  walls  of  Syracuse.  It  was  in  the  period  of  her  greatest  mili- 
tary glory  that  Socrates  was  forced  to  drink  the  cup  of  hemlock. 


PAGE  371 

If  we  come  to  later  ages  we  find  the  same  great  principle  illus- 
trated. The  only  rival  to  Rome  hi  the  universal  domination  of 
the  world  was  Spain  in  the  Middle  Ages.  She  was  the  mistress 
of  Europe,  she  was  the  mistress  of  the  seas.  Her  standing  army 
swept  over  Europe  from  the  islands  of  the  Mediterranean  to  the 
Zuyder  Zee.  Her  navies  controlled — to  use  a  modern  term— 
the  ocean  from  Asia  around  the  world  to  Asia  again.  In  her 
pride  and  her  assurance  of  power  she  attempted  to  establish 
dominion  not  only  over  the  bodies  but  over  the  minds  of  men, 
and  the  very  elements  on  which  she  had  counted  proved  her 
destruction. 

Should  we  come  further  down,  we  find  France  following  the 
same  path  of  universal  ambition,  playing  the  same  role  that 
Rome  and  Spam  had  played  in  their  time :  endeavoring  to  assert 
her  sway  as  mistress  of  the  world.  Her  soldiery  under  com- 
mand of  the  greatest  military  genius  that  the  world  has  known, 
became  the  controller  of  Europe.  Yet  she,  too,  fell,  going  the 
way  of  all  the  nations  that  have  looked  to  their  arms  to  maintain 
them  in  supremacy. 

During  all  these  years  when  first  Spain  and  then  France  at- 
tempted to  assert  their  sway,  not  only  over  the  continent  of 
Europe,  but  over  the  British  Isles  and  all  her  possessions,  Eng- 
land had  no  standing  army.  England  fought  her  battle  for 
liberty  with  her  own  citizens,  her  citizen  soldiery.  Her  trained 
bands  followed  Cromwell  on  the  fields  of  Naseby  and  Edgehill 
and  Worcester;  her  trained  bands  and  her  country  soldiery 
maintained  the  cause  of  the  Revolution  when  William  came  from 
the  Orange  States  to  give  constitutional  government  to  England. 
And  it  was  not  until  after  this  that  even  the  nucleus  of  a  stand- 
ing army  was  established  in  the  British  Isles.  Her  drum  beat, 
which  follows  the  sun,  began  its  long  roll  after  this  time,  and 
while  she  undoubtedly  has  been  a  great  colonizer  and  has  ad- 
vanced the  cause  of  civilization  in  many  parts  of  the  globe,  it  is 
at  least  a  question  for  debate  whether  by  so  doing  she  has  added 


372  JUDICIAL   SETTLEMENT 

to  the  sum  of  the  happiness  of  her  own  citizens.  She  had  at 
least  an  excuse  for  her  standing  army  which  we  have  not. 

In  the  first  place,  if  she  was  to  assume  the  r61e  of  dictator  to 
her  great  colonial  possessions  and  occasionally  to  those  which 
could  scarcely  be  termed  her  own,  it  was  necessary  that  she  should 
enforce  it  with  sufficient  power  to  make  her  sway  effective.  More- 
over, since  the  time  of  Napoleon,  at  least,  it  has  been  perhaps 
necessary  that  she  should  have  a  sufficient  force  in  training  to 
withstand  the  invasion  which  that  great  apostle  of  war  threatened 
her  with.  And,  finally,  inasmuch  as  she  is  unable  to  maintain 
herself  by  the  produce  of  her  island  alone,  and  as  her  prosperity, 
if  not  her  existence,  appeared  to  be  dependent  upon  her  retaining 
the  supremacy  at  sea,  it  is  necessary  that  she  should  have  a  great 
navy  to  protect  her  commerce. 

Whether  it  be  really  necessary  or  not  now,  we  at  least  know 
what  she  feels  in  every  fibre  of  her  being;  namely,  that  so  long 
as  Germany  continues  to  increase  her  naval  force,  already  great, 
she  herself  must  keep  pace  with  her  in  order  to  retain  her  su- 
premacy. 

But  whether  these  be  sound  reasons  or  not  for  Europe,  we  on 
this  continent  have  no  such  reasons  for  burdening  ourselves. 
In  the  first  place,  we  have  no  commerce  to  protect.  We  had  a 
commerce  once — a  single  war  vessel  swept  it  from  the  seas — and 
since  that  time  the  extraordinary  policy  of  our  government  has 
prevented  it  from  ever  being  reestablished.  We  have  a  country 
in  which  we  can  maintain  ourselves  to  the  end  of  time  by  our  own 
production.  We  have  a  population  so  great,  and  a  manufact- 
uring capacity  so  collosal  that  any  nation  that  should  attempt  to 
attack  us,  save  in  her  own  defence,  would  be  guilty  of  that  folly 
with  which  the  Gods  visit  alike  men  and  nations  whom  they 
wish  to  destroy. 

I  have  not  undertaken  to  present  the  harrowing  spectacle  of 
war  and  its  consequences.  Time  and  power  alike  are  wanting 
to  present  them  in  even  the  most  inadequate  outline.  Many  here 


PAGE  373 

present  have,  like  myself,  seen  war  in  progress — war  flagrant,  cruel 
and  remorseless.  Unhappily,  the  true  spectacle  of  war  is  veiled  to 
to  the  multitude  hi  the  glamour  of  pomp  and  circumstance  which 
blinds  their  eyes.  The  idea  of  glory  takes  possession  of  the  human 
mind  with  a  light  so  dazzling  as  to  strike  to  atrophy  the  powers  of 
reason.  The  sound  of  the  trumpet  is  so  intoxicating  as  to  drown 
the  voices  alike  of  mercy,  of  reason,  and  of  justice.  I  think,  how- 
ever, it  may  be  said  without  danger  of  its  being  questioned,  that 
could  the  armies  which  marched  to  war  to  the  martial  sound  of  the 
trumpet  and  the  drum  in  all  the  bravery  of  glittering  steel  and  float- 
ing banners  amid  the  wild  huzzah  of  the  multitude,  by  some 
omnipotent  unveiling  of  the  future  be  passed  before  their  eyes  as 
they  will  be  when  the  campaign  is  ended,  the  wildest  advocates  of 
war  would  fall  on  their  knees  and  with  tears  and  lamentations  would 
pray  that  God  Almighty  would  stay  the  red  hand  of  war  and  give 
the  blessing  of  peace. 

To  say  that  war  is  not  an  evil  is  to  employ  an  absolute  contra- 
diction in  terms.  However  necessary  at  times  it  may  appear 
to  be  hi  our  present  organization  of  human  society  it  is  not  only 
an  evil,  but  it  is  the  greatest  evil  that  the  world  knows  to-day; 
for  it  is  the  parent  of  every  evil,  whatever  its  form,  which  curses 
human  life.  It  may  be  said  that,  as  Abraham  Lincoln  said,  of 
slavery,  "If  it  is  not  wrong,  then  nothing  is  wrong."  It  causes 
more  suffering  and  more  pain,  physical  and  mental,  than  all  other 
causes  in  the  world  together.  It  breeds  more  disease  than  all 
other  causes.  It  wrings  more  tears  from  the  human  heart,  makes 
more  women  widowed  and  childless,  more  children  fatherless, 
than  all  other  causes  in  the  world  together.  It  sacks  cities,  deva- 
states countries,  and  sets  back  civilization  for  generations.  Time 
and  time  again  civilization  has  spread  over  portions  of  the  earth, 
and  war  has  passed  along  and  with  its  red  hand  has  swept  them 
away  as  one  wipes  a  picture  from  a  slate.  Cities  that  possessed  the 
wonders  of  the  world  have  been  turned  into  heaps,  and  regions  that 
have  been  gardens  have  been  transformed  into  wildernesses. 


374  JUDICIAL   SETTLEMENT 

It  was  the  boast  of  Attilla  that  grass  never  grew  where  his 
war-horse  set  his  foot,  and  though  the  boast  may  not  have  been 
uttered  in  the  same  words  by  other  captains,  the  same  consequence 
has  followed  the  desolating  tread  of  war  throughout  the  centuries. 

It  is  said  "Inter  Arma  Silent  Leges."  It  might  be  said  "Inter 
Anna  Silent  Omnia,"  for  not  only  the  laws  but  literature,  art, 
civilization,  and  all  the  blessed  voices  of  peace  are  silent — as  silent 
as  the  songs  of  the  birds  in  their  choirs  when  the  hawk,  with  red 
beak  and  talon,  is  rending  the  latest  victim  in  their  midst. 

The  campaigns  of  war  are  conducted  in  the  present,  but 
their  ravage  is  stamped  as  well  upon  the  future  in  broad 
sweeps  of  destruction  and  desolation.  It  strikes  with  its 
deadly  weapon  not  only  the  armed  man,  but  the  woman  and  the 
child.  It  strikes  in  the  present,  but  its  festering  wound  poisons 
the  blood  of  posterity.  If  its  evil  consequences  ceased  with  the 
concluding  of  peace,  it  would  be  less  intolerable;  but  far  from 
this,  its  evil  consequences  go  on  through  the  years.  The  extolled 
virtues  of  war  pass  with  the  charge  and  the  inspiration  of  glory 
or  of  duty;  but  long  after  the  war  drum  has  ceased  to  throb  and 
the  martial  sound  of  the  trumpet  has  died  away,  the  cloacas 
of  vice  overflow  their  banks  and  the  felTconsequencesof  what  may 
once  have  been  inspired  by  a  high  motive  survive  in  the  moral 
degradation  of  a  people. 

The  processes  by  which  Reason  works  her  marvels  are,  like  the 
processes  of  Nature,  slow,  and  their  results,  like  those  wrought 
by  the  processes  of  Nature,  often  take  little  account  of  the  indi- 
vidual; but  there  is  a  gradual  and  steady  advance  when  measured 
by  long  spaces  of  time.  In  the  long  run,  it  is  seen  that  the  world 
is,  as  has  been  well  said,  governed  not  by  men,  nor  by  aggrega- 
tions of  men,  but  by  ideas;  and  the  idea  of  war,  which  once 
pervaded  the  whole  human  race,  is,  under  the  slow  but  sure 
working  of  reason,  giving  place  to  the  idea  of  peace.  The  idea 
of  the  settlement  of  international  disputes  by  judicial  process 
is  gradually  making  its  way  in  the  minds  of  men  throughout  the 


PAGE  375 

world.  The  basis  of  this  idea  is  justice.  More  and  more  the 
idea  of  that  great  attribute  of  divinity  is  beginning  to  take  pos- 
session of  the  minds  of  men,  not  only  of  individuals,  but  of  those 
great  aggregations  of  men  which  we  call  peoples.  After  all 
government  rests  upon  the  opinion  of  the  people.  The  public 
opinion  of  nations  is  being  gradually  brought  to  conform  to  the 
enlarged  idea  of  justice,  and  it  is  to  the  ever  extending  and  increas- 
ing power  of  this  divine  sentiment  of  justice  that  the  world  has 
to  look  for  the  substitution  of  judicial  settlement  for  the  bitter 
arbitriment  of  war  and  the  eventual  establishment  of  peace  over 
the  earth. 

The  growth  of  the  idea  of  justice  among  the  peoples  of  the  earth 
is  nothing  like  so  slow,  even  at  its  slowest,  as  was  the  growth  of 
the  idea  of  justice  among  individuals;  from  the  time  when  in  a 
state  of  nature  the  strongest  and  most  brutal  conquered,  on  by 
slow  gradations  in  which  shrewdness  and  foresight  usurped  the 
place  of  sheer  brute  force  in  the  individual,  and  still  slowly  on 
until  at  length  we  find  justice  administered  among  men  in  all 
civilized  countries  by  what  is,  at  least,  assumed  to  be  an  impartial 
tribunal.  Even  among  the  citizens  of  different,  and  it  may  be, 
of  unfriendly  countries,  disputes  are  now  supposed  to  be  settled 
by  impartial  tribunals.  Now  we  have  only  one  more  step  to 
take — the  frank  recognition  that  all  rights  should  be  determined 
and  adjudicated  according  to  principles  of  law  and  justice,  and 
by  an  impartial  tribunal. 

Does  it  appear  difficult  to  lay  down  the  principles  of  law  and 
justice  for  the  guidance  and  control  of  the  nations?  Not  more 
so  than  it  once  appeared  to  lay  down  other  international  laws 
which  are  now  accepted  by  the  whole  civilized  world.  See  Hugo 
Grotius,  an  exile,  in  his  garret  writing  down  the  great  principles 
of  War  and  Peace,  or  see  Emerich  Von  Vattel  writing  down  the 
principles  of  international  law  in  his  great  treatise  on  the  natural 
law  applied  to  the  conduct  of  sovereigns  and  nations;  or  see  Adam 
Smith,  as  Emerson  once  said,  writing  "with  the  wealth  of  nations 


376  JUDICIAL  SETTLEMENT 

in  his  brain,"  the  principles  of  the  economic  law  of  nature  and 
of  man-kind.  Or  if  we  face  the  impregnable  fields  of  science,  see 
Copernicus  and  Newton  and  Galileo  and  Charles  Darwin  each 
in  turn  upsetting  by  the  power  of  his  pure  and  individual  reason 
the  whole  structure  of  the  supposedly  established  facts  in  the 
field  in  which  his  powers  were  exercised.  Every  one  of  these  treat- 
ises changed  the  course  of  civilization  and  directed  it  to  higher  and 
truer  planes. 

Be  sure  that  some  day  the  laws  by  which  international  disputes 
shall  be  governed  will  be  laid  down  with  an  authority  that  shall 
compel  their  adoption  and  enforcement  by  the  nations  of  the 
earth.  And  be  equally  sure  that  some  day  international  courts 
will  be  established  where  adjudications  will  be  in  accordance 
with  the  rules  of  a  system  of  international  jurisprudence,  and 
their  decrees  will  be  enforced  by  an  authority  fully  capable  of 
such  enforcement. 

The  ruler  of  one  of  the  greatest  countires  in  the  world — the 
Czar  of  all  the  Russias, — issued  the  call  which  brought  about  the 
establishment  of  the  great  Arbitral  Tribunal  at  The  Hague. 
It  is  fitting  that  the  first  call  for  the  establishment  of  a  system  of 
international  jurisprudence  should  proceed  from  this  great  country 
of  ours  dedicated  by  our  fathers  to  Truth  and  to  Justice;  to  Lib- 
erty and  Peace. 

It  is  true  that  there  have  been  occasions  when  our  government 
has  appeared  to  depart  from  the  teachings  of  the  fathers,  and 
when  the  exercise  of  her  great  power  has  appeared  even  to  some 
of  the  most  devoted  citizens  of  the  Republic  to  be  directed  not 
wholly  along  the  lines  of  justice  or  of  peace,  so  how  must  it  have 
appeared  to  those  who  were  the  sufferers  by  it?  But  these 
were  certainly  exceptional  instances  and  the  march  of  this  coun- 
try and  of  her  government  has,  in  the  main,  been  along  the  lines 
which  our  fathers  laid  down  not  only  for  the  happiness  of  our 
own  people  but  for  the  welfare  of  the  human  race.  Even  those 
departures  from  her  consistent  line  of  conduct  have  brought  their 


PAGE  377 

punishment  in  the  substitution  of  suspicion  and  hostility  on  the 
part  of  our  South  American  sisters  for  that  f riendliness  and  respect 
with  which  they  formerly  and  rightly  regarded  us.  And  not 
the  least  of  the  evils  of  the  unjust  exercise  of  power  is  the  per- 
petuation of  hostility  among  those  who  on  every  account  are  our 
natural  friends  and  allies.  From  the  time  when  Henry  Clay 
applied  all  his  great  powers  to  the  securing  of  recognition  for 
revolted  republics  of  South  America,  to  the  tune  when  Grover 
Cleveland  staked  the  power  of  America  on  the  principle  that 
Arbitration  was  the  proper  method  of  settling  the  dispute  between 
the  little  country  of  Venezuela  and  the  [mighty  country  of  Great 
Britain  across  the  seas,  the  trend  of  American  statesmanship  had 
been  to  recognize  the  bonds  which  nature  had  created  between 
the  two  continents  of  America.  And  if  this  country  is  wise  it 
will  forthwith  set  itself  once  more  to  make  plain  those  relations 
of  common  interest  and  reestablish  those  relations  of  friendship 
which  should  truly  make  America  the  new  world  to  redress  the 
balance  of  the  old. 

Those  devout  souls,  who,  inspired  by  the  dream  of  universal 
peace,  have  through  the  years,  amid  the  derision  and  obloquy 
of  their  fellow  mortals,  stood  out  for  the  abolition  of  war,  have 
assuredly  deserved  the  respect  and  gratitude  of  mankind  rather 
than  their  contempt.  Whatever  be  their  reception  among  men, 
they  have  followed  more  closely  than  others  the  Divine  teaching 
"Thou  shalt  love  thy  neighbor  as  thyself"  the  two  commandments 
on  which  hang  all  the  law  and  the  prophets,  and  the  divine  injunc- 
tion of  Him  who  said,  "Put  up  thy  sword  within  thy  sheath,  for 
he  that  taketh  the  sword  shall  perish  by  the  sword."  Nor  has 
their  work  been  wholly  thrown  away;  for,  however  unmarked  it 
may  have  appeared,  little  by  little  the  great  moral  movement 
earnestly  advocated  by  the  Quakers  and  other  bodies  of  men  who 
have  stood  for  peace,  is  spreading  over  the  earth. 

Yet  so  practical-minded  are  the  great  majority  of  men  that 
they  cannot  accept  an  abstract  idea,  and  for  the  old  and  once 


JUDICIAL   SETTLEMENT 

universal  method  of  settling  disputes,  not  only  national,  but  even 
local  and  private,  some  other  method  must  be  substituted. 
Such  a  method  is  presented  by  the  judicial  settlement  proposed 
by  the  association  organized  to  promote  this  great  conception. 

But  the  other  day  we  had  an  illustration  of  the  advance  of 
this  idea.  A  notable  citizen  of  this  country  established  a  great 
fund  for  propaganda  in  favor  of  the  maintenance  of  inter- 
national peace.  A  considerable  part  of  his  collosal  fortune  was 
acquired  through  the  manufacture  of  armor  plate  and  other 
things  pertaining  to  equipment  for  war,  and  now  in  his  advancing 
age  he  is  turning  the  great  abilities  with  which  he  achieved  his 
extraordinary  success  as  an  accumulator  of  wealth  to  the  dis- 
tributing of  a  considerable  portion  of  it  in  ways  which  he  believes 
to  be  for  the  benefit  of  the  public  from  whom  this  wealth  was 
derived.  It  is  not  uncommon  to  hear  men  speak  sneeringly  of 
his  recent  effort,  and  charge  that  he  was  laboring  under  the 
delusion  that  he  could  buy  peace.  It  is  a  strange  misapprehen- 
sion. Peace  is  always  bought  and  the  price  that  is  paid  for  it 
is  wrung  from  the  heart  of  mankind. 

I  have  mentioned  this  great  foundation  for  an  international 
peace  propaganda,  because  it  appears  to  me  an  important  step 
in  bringing  about  the  consummation  of  that  which  we  are  advo- 
cating. It  has  brought  into  existence  a  fund  which  may  in  the 
discretion  of  the  trustees  be  applied  to  defray  the  expenses  of 
such  propaganda  as  shall  commend  itself  to  them,  and  if  the  work 
of  the  Association  for  the  promotion  of  the  settlement  of  inter- 
national disputes  by  judicial  processes  shall  produce  a  plan 
cogent  enough  to  secure  their  support,  the  means  are  provided, 
at  least,  to  bring  this  plan  to  the  attention  of  the  peoples  of  the 
world,  and  to  advocate  its  adoption  by  all  legitimate  means. 

The  last  President  of  this  country  during  his  term  of  office 
did  many  things  to  entitle  him  to  the  plaudits  and  good  will  of 
the  American  peoples.  But  he  did  one  thing  to  entitle  him  to 
the  gratitude  of  mankind.  He  made  peace  between  two  of  the 


PAGE  379 

great  nations  of  the  world  long  before  peace  appeared  possible 
and  probably  before  it  could  have  been  made  in  any  other  way. 

I  have  higher  authority  than  my  own  for  this  statement  that 
he  is  entitled  to  such  gratitude;  for  some  few  years  ago,  when 
with  two  others,  I  had  the  honor  of  an  audience  with  his  Holiness 
at  Rome,  he  said,  when  he  learned  that  we  were  from  Washing- 
ton, that  when  we  returned  to  our  homes,  he  hoped  that  we  would 
say  to  Mr.  Roosevelt  for  him  that  he  deserved  for  this  act  the 
admiration  and  the  gratitude  of  the  whole  civilized  world.  It 
was  a  tragic  circumstance  that  prevented  those  two  men  meeting 
face  to  face. 

But  as  high  authority  as  is  this,  there  is  yet  higher — for  One 
upon  a  mountain,  above  all  the  world,  has  said  that  "Blessed  are 
the  peace-makers  for  they  shall  be  called  the  Children  of  God. ' ' 

It  is  not  too  much  to  say  that  as  time  shall  pass,  when  all 
lesser  things  which  that  President  of  the  United  States  accom- 
plished shall  have  likewise  passed,  the  effect  of  this  one  great 
supreme  act  of  his  will  still  abide,  and  myriads  who  possibly 
never  heard  even  his  name,  will  share  in  the  blessings  which  his 
courage  and  his  wisdom  brought  primarily  to  those  two  countries, 
and  indirectly  to  all  mankind  in  the  shape  of  that  peace.  There 
was  but  one  person  in  all  the  world  who  could  have  done  that— 
the  president  of  the  United  States.  It  has  given  the  president 
of  the  United  States  a  new  position  in  the  world.  He  may 
unofficially,  and  without  arousing  political  animosities  or  sus- 
picions, act  as  a  peace  seeker. 

The  present  high  minded,  broad  minded,  and  unselfish  Presi- 
dent of  the  United  States  has  done  many  things  to  establish  him 
in  the  regard  and  affection  of  the  people  of  this  country.  Reared 
amid  the  traditions  alike  of  the  law  and  diplomacy,  bred  to  the  bar, 
experienced  on  the  bench,  knowing  more  of  the  demands  of  the 
judiciary  than  any  other  president  who  has  ever  held  the  office  of 
chief  magistrate  of  this  nation,  it  would  appear  to  me  that  God 
in  his  wisdom  has  at  this  juncture  raised  up  for  us  a  man,  who,  of 


380  JUDICIAL   SETTLEMENT 

all  men  on  earth,  is,  by  reason  of  his  rearing  and  his  experience, 
best  fitted  to  carry  out  this  one  work:  to  establish  the  mighty 
principle  of  the  settlement  of  international  disputes  by  law. 

At  this  moment  have  come  new  engineries  of  war  pertaining 
to  the  conquest  of  the  atmosphere,  the  knowledge  of  which  is  yet 
in  its  infancy  and  the  end  of  which  no  man  may  yet  see;  and  at 
the  same  time  the  people  of  the  world — the  people  of  the  old  world, 
and  the  people  of  the  new  world  alike — are  awakening  under  new, 
vast  educational  forces  to  a  realization  of  their  power  and  of  their 
responsibilities  as  never  before  in  the  history  of  mankind. 

The  time  is  ripe  for  him,  the  President  of  the  United  States, 
to  move,  to  take  the  first  great  step  as  the  representative 
and  head  of  one  of  the  great  nations  of  the  earth  and  make  this 
movement  not  only  a  national  movement,  but  a  world  movement. 
Beside  it  all  other  movements  of  the  time  would  fade  into  insig- 
nificance. It  might  almost  be  said  that  all  other  movements  of 
the  ages  would  dwindle  in  comparison  with  it.  I  know  well 
that  one  nation  cannot  disarm  while  other  nations,  actuated 
by  the  selfish  motives  that  dominate  mankind,  remain  armed  and 
ready  to  spring;  but  I  assert  with  absolute  conviction  that,  fol- 
lowing his  lead,  the  American  people  would  be  glad  to  see  such 
an  international  system  of  law  established  as  would  justify  their 
present  armament  giving  place  to  the  stronger  armament  of 
Equity  and  Law,  if  other  nations  could  be  brought  to  the  same 
happy  and  blessed  view;  and  I  assert  that  following  the  lead  of 
this  nation,  every  people  in  this  hemisphere  would  be  glad  to 
unite  with  us  in  such  a  movement  for  the  universal  substitution 
of  law  and  judicial  procedure  for  the  present  methods  of  deciding 
international  disputes.  The  time  is  ripe:  Let  the  president  of 
this  great  republic  sound  his  trumpet  as  the  Herald  of  Peace,  and 
the  people  will  flock  to  his  standard.  Let  him  seek  the  aid  of 
the  Congress;  use  all  his  constitutional  powers — he  will  use  no 
others — and  head  as  he,  and  only  he,  can  do,  a  great  world  move- 
ment for  the  establishment  of  an  international  system  of  judicial 
procedure  for  the  settlement  of  all  international  disputes. 


PAGE  381 

Let  him  request  the  trustees  of  the  foundation  just  established 
by  the  citizen  of  this  republic,  for  the  purpose  of  promoting 
universal  peace,  to  make  possible  the  proper  entertainment  of 
representatives  of  other  nations.  Invite  all  the  republics  of 
this  hemisphere;  or  better  still  all  the  republics  of  the  world; 
or  yet  better,  all  the  nations  of  the  world  to  send  representatives 
of  their  judiciary  to  this  country  to  assemble  in  conference  here 
to  discuss  the  fundamental  principles  of  such  a  system  of  juris- 
prudence and  the  preparation  of  a  code  of  international  law  for 
the  settlement  of  international  disputes. 

Let  him  do  this,  and  although  he  will  not  abolish  wars,  nor 
create  universal  peace — he  will  have  done  more  than  has  been 
done  in  the  ages  past  to  diminish  wars  and  to  enlarge  the  periods 
of  peace — he  will  have  done  more  than  any  men  of  his  genera- 
tion to  abolish  Hell,  and  to  hasten  the  coming  of  the  Kingdom 
of  God. 

The  Toastmaster:  With  one  exception  the  list  of  speeches 
is  filled.  In  behalf  of  this  great  audience,  and  in  behalf  of  all  the 
thousands,  I  might  say  the  millions,  of  people  hi  the  United 
States  who  sympathize  with  your  work,  I  wish  to  thank  the  Pres- 
ident of  the  United  States  for  his  gracious  presence  and  his  wise, 
brave  words  here  tonight.  In  your  behalf  I  wish  to  thank  those 
who  have  spoken.  And  now  the  closing  speech  will  be  made  by 
the  Honorable  W.  Bourke  Cockran. 

ADDRESS  OF  BOURKE  COCKRAN. 

Mr.  Toastmaster  and  Gentlemen,  There  is  one  aspect  of  this 
gathering  which,  it  seems  to  me,  has  escaped  observation.  It  is 
suggested  by  the  speech  of  the  President  of  the  United  States, 
that  wonderful  leader  of  public  opinion  who  has  the  faculty  of 
reducing  to  practical  form  the  suggestions  which  proceed  from 
a  lofty  conception  of  public  duty. 

The  expenditures  now  being  made  throughout  the  world  for 


382  JUDICIAL  SETTLEMENT 

military  purposes  have  reached  a  scale  when  the  lessening  of 
them  is  not  merely  a  condition  precedent  to  the  improvement  of 
human  conditions,  but  a  precaution  absolutely  essential  to  the 
preservation  of  civilized  society.  But  a  few  years  ago  it  seemed  as 
if  the  horizon  was  cloudless.  The  rate  of  interest  was  falling, 
which  indicated  a  large  amount  of  capital  available  for  industry, 
promoting  and  stimulating  enterprise  in  every  direction.  The 
prices  of  necessaries  were  falling  on  every  side.  But  within  the 
last  few  years  the  world  has  been  confronted  with  a  phenomenal 
rise  in  prices,  and  that  too  at  a  time  when  the  productive  capacity 
of  man  is  greater  not  only  than  anything  in  the  experience  of  the 
race,  but  far  beyond  the  capacity  of  other  generations  even  to 
conceive.  Now,  a  rise  in  prices  shows  that  the  actual  supply 
of  commodities  available  for  human  use,  instead  of  increasing 
steadily,  is  decreasing.  There  can  be  no  explanation  of  a  rise 
in  prices  except  scarity,  and  there  is  no  explanation  of  falling 
prices  except  abundance.  Now,  it  must  be  self  evident  that  if 
this  rise  in  prices  continues, — and  it  is  said  by  men  whose  judg- 
ment is  worth  considering  that  it  is  now  a  permanent  economic 
condition — a  large  number  of  the  human  family  will  soon  be 
unable  to  supply  themselves  with  the  necessaries  of  life  through 
their  own  exertions.  If  it  be  persistent,  that  number  must 
increase,  and  with  the  ranks  of  the  destitute  growing  steadily, 
the  progress  of  mankind  is  arrested,  the  movement  of  humanity 
is  downward. 

I  do  not  want  you  to  think  that  I  am  here  to  preach  that 
gospel  of  despair.  I  do  not  believe  that  this  rise  in  prices  is  a 
necessary  and  inevitable  economic  condition.  I  believe  it  is 
the  result  of  subversive  policies  to  which  the  peoples  of  the  earth 
have  nevertheless  lent  themselves  during  the  last  generation; 
and  the  mischief  produced  by  policies  subversive  of  civilization 
can  be  controlled  by  substituting  for  them  policies  consistent 
with  civilization. 

I  think  it  capable  of  demonstration  that  this  steady  rise 


COCKRAN  383 

in  prices  is  attributable  to  the  competition  between  the  powers 
to  establish  the  most  complete  and  perfect  equipment  of  destruc- 
tion. If  I  see  a  stream  of  water  discharging  into  a  vessel  and  the 
contents  of  the  vessel  nevertheless  diminishing,  I  know  that  there 
must  be  a  waste  somewhere.  So  when  we  see  the  volume  of 
commodities  available  for  human  use  all  over  the  world  dimin- 
ishing, notwithstanding  a  steady  increase  in  supply,  we  know  that 
there  must  be  in  this  world  a  waste  greater  than  the  supply. 
Now,  what  waste  is  there  except  that  involved  in  the  maintenance 
of  armaments? 

I  know  it  is  claimed  that  the  tariff  is  responsible  for 
rising  prices  in  the  United  States.  That  has  been  the  battle 
cry  of  a  recent  political  struggle.  Well,  I  do  not  think  any  body 
will  suspect  me  of  being  an  apologist  for  the  tariff.  I  am  one  of 
those  who  are  opposed  to  a  protective  tariff  root  and  branch. 
I  believe  the  way  to  reform  a  tariff  is  to  abolish  it;  but  while  I 
feel  it  proper  to  say  this  much,  lest  I  may  be  suspected  of  par- 
tiality to  the  tariff,  I  want  to  add  that  while  the  tariff  may  have 
contributed  to  the  rise  in  prices,  it  is  not  the  sole  or  the  main 
cause.  This  rise  in  prices  is  not  local,  but  is  worldwide.  When 
we  find  that  in  England  the  rise  in  prices,  though  not  so  great  as 
in  this  country,  is  still  substantial  and  oppressive,  there  is  but 
one  cause  to  explain  it,  and  that  is  the  stupendous  sums  wasted 
in  armaments,  amounting  during  the  year  of  1909  to  the  enor- 
mous, almost  inconceivable  sum  of  one  billion  and  a  half  of  dollars. 

Now,  remember  that  every  dollar  spent  in  armament  is  a  waste, 
absolutely  a  waste  of  treasure.  Money  spent  in  armament  is 
like  a  grain  of  seed  thrown  into  the  sea.  A  dollar  spent  for  a 
productive  purpose  is  like  a  seed  planted  in  fertile  soil,  reproduc- 
ing itself  in  a  hundred  ways.  I  know  that  in  the  construction  of 
these  armaments  men  are  employed  at  good  wages,  but  that  is 
the  worst  feature  of  it,  for  it  diverts  men  from  those  employments 
where  their  labor  would  be  fruitful  to  employments  where  their 
labor  is  sterile  "and  barren. 


384  JUDICIAL   SETTLEMENT 

The  money  expended  by  governments  in  public  improvements 
like  the  Panama  Canal,  now  being  pushed  to  completion  under 
the  guidance  and  energy  of  our  distinguished  chief  executive, 
will  repay  to  the  producer  one  hundred  dollars  for  every  penny 
that  is  contributed.  The  plow  is  being  made  less  valuable  with 
every  furrow  that  it  turns,  but  before  it  is  worn  out  it  produces 
a  thousand  tunes  its  own  value.  The  ship  of  commerce  is  worth 
little  when  its  race  is  run,  though  it  cost  much  to  build;  but 
during  its  life  it  has  promoted  production  by  facilitating  the 
exchange  of  commodities  to  a  degree  a  hundred  times  beyond  its 
value.  But  a  warship  produces  nothing.  It  is  least  injurious 
when  it  is  absolutely  idle.  It  can  only  become  effective  by  becom- 
ing destructive,  and  in  addition  to  the  funds  lavished  upon  its 
construction  it  must  destroy  property  in  every  direction,  to  say 
nothing  of  human  life,  the  most  valuable  quantity  that  moves 
upon  the  surface  of  this  earth.  And  what  is  true  of  the  ship  of 
war  is  true  of  fortresses,  guns,  all  war  materials,  all  a  dead  weight 
except  when  they  are  used  in  the  actual  destruction  of  property 
and  life. 

Measure  this  expenditure  in  some  commodity  available  for 
human  sustenance  or  comfort.  The  whole  wheat  crop  of  the 
United  States  in  the  year  1910,  was  691,769,000  bushels  worth 
nearly  a  dollar  a  bushel.  Now,  suppose  that  some  perverted 
genius  should  gather  that  immense  crop  and  drop  it  into 
the  sea.  Conceive  the  effect  that  would  have  upon  the  price 
of  bread  throughout  the  world.  Yet  that  injury  to  the 
human  family,  so  great  that  we  can  hardly  conceive  it, 
would  not  be  half  the  injury  that  is  worked  to  it  by  this  constant 
passion  for  destruction  embodied  in  this  craze  for  armament, 
this  competition  on  the  road  to  bankruptcy,  if  I  may  quote  the 
happy  and  forceful  expression  of  the  President  of  the  United 
States. 

The  cotton  crop  of  the  United  States  for  the  previous  year, 
the  last  available,  was  10,386,209  bales,  worth  approximately 


COCKRAN  385 

a  like  sum.  Conceive  some  perverted,  hellish  ingenuity  gather- 
ing all  that  valuable  crop  into  a  pile  and  reducing  it  to  ashes  by 
fire.  The  injury  wrought  by  that  destruction  would  not  reach 
half  the  degree  of  injury  perpetrated  upon  the  race  by  these  arm- 
aments. 

Now,  the  expense  of  armament  is  not  to  be  measured  in  one 
commodity  or  two,  but  in  all  commodities.  The  cost  of  it  is 
paid  by  every  man,  woman  and  child  throughout  the  world,  hi 
the  increased  price  of  the  necessaries  of  life.  When  we  see  the 
laborer  who  must  wear  shoes  longer  than  before  on  account  of 
the  increased  cost  of  the  new  pair;  when  we  see  the  child  compelled 
to  be  content  with  thinner  clothing  on  account  of  the  higher 
price  of  wool  and  cotton;  when  we  see  the  breakfast  table  and 
dinner  table  made  less  appetizing  and  less  nourishing  by  reason 
of  the  higher  price  of  food;  when  we  see  the  dwelling  made  less 
commodious  by  reason  of  the  higher  cost  of  construction, — when 
we  see  these  things,  then  we  see  the  cost  of  armaments  being 
paid  in  the  stunted  growth  of  children,  the  increasing  anxiety 
of  women,  the  deepening  gloom  of  men,  the  hastening,  impending 
misery  of  families. 

Oh,  but  they  tell  us  that  the  waste  of  this  expenditure  is  neces- 
sary in  order  to  avoid  a  greater  waste,  war,  that  the  maintenance 
of  these  armaments  is  essential  to  the  maintenance  of  peace. 
But  the  waste  of  which  they  pretend  to  be  afraid  could  not  be 
half  so  great  as  the  waste  that  they  themselves  are  causing. 
Picture  to  yourselves  what  these  armaments  have  cost  during 
the  last  twenty  years.  Picture  to  yourselves  what  each  country 
has  contributed  for  them,  and  then  measure  against  that  any 
calamity  that  could  have  been  brought  on  by  war.  If  a  town 
had  been  sacked,  if  its  homes  had  been  burnt,  if  its  factories  had 
been  leveled,  if  its  fields  had  been  laid  waste,  if  a  heavy  indemnity 
had  been  imposed  upon  its  people,  to  all  these  disasters  would 
be  at  least  an  end  in  time.  Those  ravages,  however  great,  might 
be  repaired;  but  these  expenditures  for  armaments  have  neither 


386  JUDICIAL   SETTLEMENT 

end  nor  limit  nor  measure,  not  hope  of  termination;  and  the  peace 
that  they  claim  to  have  preserved  is  peace  for  war,  continuous 
destructive  war,  and  unending,  with  this  peculiarly  atrocious 
feature,  that  instead  of  making  war  against  each  other,  each  nation 
is  making  war  upon  its  own  people,  imposing  burdens  not  upon 
an  enemy  in  arms,  but  upon  the  men,  women  and  children  that 
it  is  organized  to  protect. 

Now,  hi  this  terrible  competition  of  destruction,  this  race  toward 
bankruptcy,  if  I  may  again  make  use  of  the  expression  of  the  Pres- 
ident, we  find  great  nations  taking  part,  that  claim  to  be  leaders 
of  civilization,  although  none  of  them  seems  to  be  able  to  assign 
a  good  reason  for  the  terror  they  profess.  They  are  apprehen- 
sive of  something  that  their  statements  do  not  even  formulate. 
They  are  solemnly  casting  into  the  sea  the  treasure  of  their  peo- 
ple, the  product  of  their  hands,  the  fruitage  of  the  sweat  of  their 
brows,  and  yet  they  cannot  point  to  a  single  thing  or  act  that 
justifies  this  apprehension  except  the  fact  that  the  other  country 
is  armed. 

Why,  a  parallel  of  this  lunacy  cannot  be  found  in  all  recorded 
history.  To  get  anything  like  it  we  must  fall  back  upon  indi- 
vidual eccentricity;  and  there  I  know  of  but  one  example  of  par- 
allel, and  that  is  the  fantastic  effort  of  one  Coal-oil  Johnny  who 
became  notorious  some  forty  years  ago  by  his  efforts  to  get  rid 
of  the  fortune  that  came  to  him  as  the  result  of  the  discovery  of 
oil  upon  his  land.  It  is  recorded  of  him  that  he  challenged  a 
rival  to  meet  him  at  a  certain  place  and  throw  ten  dollar  bills 
into  the  water  until  one  or  the  other  of  them  would  become  dis- 
couraged or  bankrupt.  Now,  it  is  a  lamentable  condition  in  this 
twentieth  century,  to  find  two  or  more  great  nations  animated  by 
the  same  spirit,  throwing  their  treasure  into  the  sea,  in  sums  which 
are  almost  beyond  the  capacity  of  the  human  mind  to  conceive, 
to  determine  which  one  will  first  become  bankrupt. 

But,  my  friends,  we  must  not  forget  the  fact  which  the  Presi- 
dent pointed  out,  that  one  nation  cannot  assume  the  position  of 


COCKRAN  387 

arming  itself  without  provoking  like  action  on  the  part  of  other 
nations.  It  is  the  law  of  human  intercourse.  If  one  man  makes 
threatening  gestures,  others  must  throw  themselves  into  an  atti- 
tude of  defense,  and  that  involves  the  use  of  similar  gestures; 
and  so  if  one  nation  continues  to  arm  itself,  all  other  nations  must 
go  out  and  arm  themselves  in  like  degree,  and  the  result  is  a  gap- 
ing wound  in  the  side  of  civilization,  from  which  the  sturdy  life 
blood,  the  means  of  subsistence,  flows  forth  to  the  deadly  injury 
of  civili/^d  society.  This  country  of  ours  has  not  escaped  from  it. 
I  do  not  know  that  it  can,  until  the  conditions  that  govern  the 
relations  of  countries  to  each  other  are  changed,  as  we  hope  to 
see  them  changed.  We  are  great  sufferers  from  it,  because  with 
the  opportunities  on  every  hand  for  the  development  of  our  mate- 
rial resources,  we,  the  most  industrious  people  in  the  world,  are 
most  sensitive  to  anything  that  dams  up  the  flow  of  capital, 
itself  the  product  of  human  industry.  Why,  the  amount  of 
money  we  have  spent  in  armaments  during  the  last  ten  years 
would  be  enough  to  have  constructed  four  great  highways  from 
the  Atlantic  to  the  Pacific,  and  four  more  crossing  them  from  the 
northern  to  the  southern  boundary,  and  four  more  crossing  them 
at  different  angles,  like  the  avenues  that  radiate  from  given  cen- 
tres in  Washington.  It  would  have  built  four  or  five  Panama 
Canals.  It  would  have  supplemented  our  rivers  by  a  system  of 
artificial  waterways  which  would  have  so  cheapened  transporta- 
tion as  to  bring  about  an  important  decrease  in  the  price  of  com- 
modities. All  the  conditions  of  life  would  be  unproved.  The 
products  of  the  farmer  would  reach  the  market  at  much  less  cost. 
The  physician,  hastening  to  relieve  suffering,  would  reach  the 
bedside  of  his  patient  hi  less  tune  and  with  less  effort;  the  child 
going  to  school  would  find  its  journey  abridged  and  softened. 
The  steady  fall  in  prices  of  commodities  would  be  equal  to  a  decis- 
ive rise  in  the  rate  of  wages;  and  all  these  blessings  which  provi- 
dence has  offered  to  this  people,  have  been  dashed  from  our  lips 
by  this  mad  passion  of  destruction  of  which  we  are  the  victims, 
and  in  which  we  are  forced  to  take  part. 


388  JUDICIAL  SETTLEMENT 

Now,  is  there  no  way  by  which  this  waste  of  property  can  be 
avoided?  Is  there  no  way  by  which  man  can  be  prevented  from 
destroying  the  product  of  his  own  labor,  by  which  he  can  be  pre- 
vented from  disregarding  impiously  the  opportunities  for  improve- 
ment extended  to  him  by  his  Creator? 

We  must  realize  that  there  is  distrust  amongst  the  nations. 
We  cannot  ignore  it.  We  must  deal  with  it,  and  how  shall  we 
deal  with  it?  This  Society  has  suggested  one  solution.  The 
President  of  the  United  States  has  mentioned  it  and  has  des- 
cribed it  in  glowing  terms.  The  disposition  of  man  to  dispute 
will  continue  so  long  as  he  breathes;  but  the  settlement  of  his 
disputes  does  not  necessarily  require  violence.  As  Mr.  Page  has 
pointed  out,  the  experience  of  individuals  in  settling  their  dis- 
putes by  peaceful  arbitration,  shows  that  the  time  has  now  come 
when  the  nations,  in  the  light  of  civilization,  can  apply  those 
principles  of  international  law  and  enforce  them  by  a  new  agency, 
justified  by  the  necessities  of  civilization.  A  tribunal  which 
would  be  representative  of  all  nations,  embodying  the  best,  the 
most  learned,  the  wisest,  the  flower  of  their  citizenship  and  of 
their  learning,  might  well  be  equipped  with  power  to  offer  its 
intervention  at  the  request  of  any  nation,  attacked  or  aggrieved 
by  another.  The  words  that  the  President  of  the  United  States 
has  spoken  tonight  will  be  a  new  light  to  mankind;  for  he 
says  we  are  willing  to  submit  to  such  a  tribunal  everything; 
not  merely  disputes  about  commercial  and  material  things,  but 
what  are  called  questions  of  honor;  and  if  we,  the  greatest  nation 
of  the  earth,  the  strongest,  the  one  that  has  least  to  fear  from 
violence,  are  willing  to  submit  everything  that  can  enter  into  a 
controversy  with  any  other  country,  including  that  great,  mysti- 
cal thing  called  national  honor,  and  made  so  often  the  cloak 
under  which  national  aggressions  are  carried  on — if  we  can  sub- 
mit all  these  to  the  decision  of  such  a  tribunal,  what  nation  on 
the  earth  can  pretend  that  it  cannot  afford  to  submit  them  to 
the  same  tribunal? 


COCKRAN  389 

By  his  speech  tonight  the  President  of  the  United  States  has 
cast  upon  fruitful  soil,  (the  conscience  of  mankind),  a  seed  that  will 
flower  and  fruit  into  something  definite  for  the  solution  of  this 
problem,  which  must  be  solved  if  civilization  is  to  continue.  We 
ask,  not  that  the  tribunal  summon  any  nation  before  it  in  the 
name  of  any  other  nation,  but  it  might  well  be  equipped  with  the 
power  to  summon  any  country  in  the  name  of  justice. 

It  has  been  suggested  by  some  that  the  nations  of  the  earth 
should  be  asked  to  clothe  this  court  with  the  necessary  forces  to 
carry  out  its  decrees.  Mr.  Choate  has  showed  you  tonight  that 
it  would  be  difficult  perhaps  to  bring  about  an  agreement  of  that 
kind;  but  I  do  not  think  it  is  necessary.  Let  that  tribunal  be 
equipped  merely  with  the  power  to  offer  its  good  offices,  to  ascer- 
tain the  justice  of  every  controversy,  and  then  to  proclaim  what 
justice  and  international  conscience  imposes,  and  there  is  not  a 
nation  in  the  world,  so  strong,  so  proud,  so  reckless,  that  it  would 
venture  to  draw  a  sword  against  that  decree. 

Justice  has  now  become  the  passion  of  humanity.  It  is  not 
necessary  to  do  any  more  than  to  show  men  or  nations  where 
justice  lies,  to  make  certain  that  her  authority  will  be  confessed 
and  her  decrees  obeyed.  The  establishment  of  this  tribuna^ 
with  no  other  equipment  or  charter  than  that  contained  in  the 
speech  of  the  President  of  the  United  States  here  tonight,  will 
launch  that  court  on  the  tide  of  international  affairs,  equipped 
with  powers  before  which  wrong  and  violence  and  threatened 
violence  and  armament  and  every  other  embodiment  of  brute 
force  will  go  down.  I  say  here  tonight  that  the  enterprise  in 
which  you  are  engaged  is  an  enterprise  that  involves  not  the  pros- 
perity but  the  existence  of  civilization.  If  it  fail,  then  we  are 
face  to  face  with  growing  hate  among  nations,  with  increased 
armaments,  with  further  waste  of  treasure,  with  a  rise  in  prices, 
with  a  spread  of  misery,  with  the  ranks  of  the  destitute  growing 
more  numerous.  In  its  success  on  the  other  hand,  we  find  every 
problem  seriously  effecting  the  progress  of  humanity  solved. 


390  JUDICIAL  SETTLEMENT 

Peace  established  upon  foundations  of  justice  will  be  perpetual 
and  immutable.    Before  it  humanity  cannot  hesitate.    The  pur- 
pose of  this  gathering  must  prevail.    With  the  impetus  it  has 
received  tonight  it  will  prevail. 
THE  TOASTMASTER:    Gentlemen,  I  bid  you  good  night. 


APPENDIX  A 

Extracts  from  U.  S.  Statute  incorporating  the  "Carnegie  Endowment  for 
International  Peace. " 

SEC.  2.  That  the  objects  of  the  corporation  shall  be  to  advance  the  cause 
of  peace  among  nations,  to  hasten  the  abolition  of  international  war,  and  to 
encourage  and  promote  a  peaceful  settlement  of  international  differences, 
and,  hi  particular — 

(a)  To  promote  a  thorough  and  scientific  investigation  and  study  of 
the  causes  of  war  and  of  the  practical  methods  to  prevent  and  avoid  it. 

(b)  To  aid  in  the  development  of  international  law,  and  a  general 
agreement  on  the  rules  thereof,  and  the  acceptance  of  the  same  among 
nations. 

(c)  To  diffuse  information,  and  to  educate  public  opinion  regarding 
the  causes,  nature  and  effects  of  war,  and  means  for  its  prevention  and  avoid- 
ance. 

(d)  To  establish  a  better  understanding  of  international  rights  and  duties 
and  a  more  perfect  sense  of  international  justice  among  the  inhabitants  of 
civilized  countries. 

(e)  To  cultivate  friendly  feelings  between  the  inhabitants  of  different 
countries,  and  to  increase  the  knowledge  and  understanding  of  each  other 
by  the  several  nations. 

(f)  To  promote  a  general  acceptance  of  peaceable  methods  in  the  settle- 
ment of  international  disputes. 

(g)  To  maintain,  promote,  and  assist  such  establishments,  organiza- 
tions, associations,  and  agencies  as  shall  be  deemed  necessary  or  useful  in 
the  accomplishment  of  the  purposes  of  the  corporation,  or  any  of  them. 

(h)  To  take  and  hold  such  property,  real  or  personal,  and  to  invest  and 
keep  invested  and  receive  and  apply  the  income  of  such  funds,  and  to  con- 
struct and  maintain  such  buildings  or  establishments  as  shall  be  deemed 
necessary  to  prosecute  and  develop  the  purposes  of  the  corporation,  or  any 
of  them. 

(i)  To  do  and  perform  all  lawful  acts  or  things  necessary  or  proper  in 
the  judgment  of  the  trustees  to  promote  the  objects  of  the  corporation. 

With  full  power,  however,  to  the  trustees  hereinafter  named,  and  their 
successors,  from  time  to  time,  to  modify  the  conditions  and  regulations 


392  APPENDIX 

under  which  the  work  shall  be  carried  on,  and  the  particular  purposes  to 
which  the  income  shall  be  applied,  so  as  to  secure  the  application  of  the  funds 
in  the  manner  best  adapted  to  the  conditions  of  the  time:  Provided,  That 
the  purposes  of  the  corporation  shall  at  all  times  be  among  the  foregoing 
or  kindred  thereto. 

SEC.  3.  That  the  management  and  direction  of  the  affairs  of  the  corpora- 
tion and  the  control  and  disposition  of  its  property  and  funds  shall  be  vested 
in  a  board  of  trustees,  twenty-eight  in  number,  to  be  composed  of  the 
following  individuals:  Robert  S.  Brookings,  Thomas  Burke,  Nicholas  Mur- 
ray Butler,  John  L.  Cadwalader,  Joseph  H.  Choate,  Cleveland  H.  Dodge, 
Charles  W.  Eliot,  Robert  A.  Franks,  Arthur  William  Foster,  John  W.  Fos- 
ter, Austen  G.  Fox,  William  M.  Howard,  Samuel  Mather,  Andrew  J.  Mon- 
tague, George  W.  Perkins,  Henry  S.  Pritchett,  Elihu  Root,  Jacob  G.  Schmid- 
lapp,  James  Brown  Scott,  James  L.  Slayden,  Albert  K.  Smiley,  Oscar  S. 
Straus,  Charles  L.  Taylor,  Charlemagne  Tower,  Andrew  D.  White,  John 
Sharp  Williams,  Robert  S.  Woodward,  Luke  E.  Wright,  who  shall  consti- 
tute the  first  board  of  trustees.  Vacancies  caused  by  death,  resignation 
or  otherwise  shall  be  filled  by  the  remaining  trustees  in  such  manner  as 
shall  be  prescribed  from  time  to  time  by  the  by-laws  of  the  corporation. 
The  persons  so  elected  shall  thereupon  become  trustees  and  also  members 
of  the  corporation. 


APPENDIX  B 

The  following  are  the  officers  of  the  World  Peace  Foundation: 
TRUSTEES:    Edwin  Ginn,  Pres.  A.  Lawrence  Lowell,  Pres.  W.  H.  P. 

Faunce,  Joseph  Swain,  Prof.  Samuel  T.  Button,  Rev.  Edward  Cummings, 

Hon.  S.  W.  McCall,  Miss  Sarah  Louise  Arnold,  Mr.  G.  A.  Plimpton,  George 

W.  Anderson. 
DIRECTORS:    Dr.  David  Starr  Jordan,  James  Brown  Scott,  James  A. 

Macdonald,  Hamilton  Holt,  John  R.  Mott,  Rev.  Charles  R.  Brown,  Edwin 

D.  Mead. 

ADVISORY  COUNCIL:  Prof.  Elbert  Russell,  Pres.  L.  Clarke  Seelye,  Rev. 
Francis  E.  Clark,  Rev.  Frederick  Lynch,  Judge  Simeon  E.  Baldwin,  Pres. 
James  B.  Angell,  H.  C.  Phillips,  Pres.  Ethelbert  D.  Warfield,  Hon.  John  W. 
Foster,  Hon.  Jackson  H.  Ralston,  Pres.  William  L.  Bryan,  Hon.  Theodore 

E.  Burton,  Mrs.  May  Wright  Sewell,  Hon  David  J.  Foster,  Thomas  Rae- 
burn  White,  Miss  Jane  Addams,  Prof.  John  B.  Clark,  Theodore  Marburg, 
Fannie   Fern   Andrews,    Dean   Henry   Wade  Rogers,  Rev.  Samuel  M. 
Crothers,  Hon.  Richard  Bartholdt,  Prof.  Charles  T.  Fagnani,  Dean  George 
W.  Kirchwey,  Pres.  Charles  R.  Van  Hise,  Harris  Weinstock,  Prof.  Jean  C. 
Bracq,  Dr.  Booker  T.  Washington,  Albert  K.   Smiley,  Pres.   Mary  E. 
Wooley,  Prof.  P.  V.  N.  Myers,  Rev.  Jenkin  Lloyed  Jones,  Prof.  William 
I.  Hull,  Hon.  John  H.  Stiness,  Pres.  Charles  F.  Thwing,  Pres.  Rush  Rees, 
Stanley  R.  Yarnell,  Dr.  Elmer  E.  Brown,  Pres.  S.  P.  Brooks,  Rev.  Chas.  E. 
Jefferson,  Rabbi  Stephen  S.  Wise,  Thorvald  Solberg,  Pres.  S.  C.  Mitchell, 
Pres.  Nicholas  Murray  Butler,  Hon.  Andrew  D.  White,  Hon.  Philander  C. 
Knox,  Prof.  Bliss  Perry,  Pres.  Edwin  S.  Alderman,  Prof.  Frank  A.  Fetter, 
William  Kent,  Prof.  George  E.  Vincent,  Hon.  Eugene  Hale,  Pres.  John  F*in- 
ley,  Prof.  Samuel  S.  Reinsch,  S.  S.  McClure,  Prof.  George  G.  Wilson,  Pres. 
Harry  Pratt  Judson,  Dean  W.  P.  Rogers. 


393 


INDEX 


Adams,  Henry,  United  States  History,  45,  on 

War  of  1812,  46,  48,  50,  53,  55,  63;  on 

allegiance,  60. 

Advance  from  force  to  reason,  40. 
Airships  in  war,  175,  180;  artillery  in,  177; 

codes  for  170;  smuggling  by,  173. 
Alabama  Claims,  25,  349. 
Alaska  Boundary,  Commission  on,  146; 

settlement  of,  27. 
Allegiance,  doctrine  of,  60. 
America  as  a  peacemaker,  362. 
American  citi/enship,  ideals  of,  361. 
American  colonies,  English  relation  of,  104. 
American  doctrine  of  jurisdiction  of  courts 

over  States,  too. 
American  Society  for  Judicial  Settlement  of 

International   Disputes,  character  of,  3; 

length  of  name,  340. 
Amphictyonic  Council,  77. 
Angell,  Norman,  "Great  Illusion,"  318. 
Annexation  by  joint  resolution,  64. 
Arbiter  in  council,  202. 
Arbitral  Court,  pattern  of,  214-221;  personal 

equation,  221. 
Arbitration,  impartial,  n;  fisheries  and,  22, 

28,  growth  of,  95 ;  state  sovereignty  and, 

151;  at  Hague,  198;  general  agreements, 

198,  Treaty  of  Ryswick,  223;  in  industrial 

warfare,  279,  conferences,  297;  Loo  Choo, 

349;  of  all  questions,  359;  public  opinion, 

and,  92. 

Arbitration  Treaty,  27. 
Armament,  limitation  of,  3;  cost  of,  383-387. 
Armed  peace,  184. 
Army  and  Arbitration,  348. 
Articles  of  Confederation,  court  under,  So. 
Attilla,  quoted,  374. 
Aviation,  records,  169;  meet  at  Baltimore, 

176;  frontiers,  179. 
Aviation  as  affecting  the  judicial  settlement 

of  international  disputes,  168. 


Bacon,  quoted,  337. 

Baldwin,  Simeon  E.,  address  of,  222;  arbi- 
tration judges,  166;  airships,  173;  presid- 
ing officer,  257,  329. 

Barlow,  quoted,  51. 

Barra,  Francesco  L.  de  la,  address  of,  5. 

Bartholdt,  Richard,  address  of,  357. 

Bassano,  51-52. 

Bastiat,  quoted,  239. 

Bates,  Joshua,  umpire,  23. 

Bay  of  Passamaquoddy,  islands  in,  20. 

Beliefs  of  American  colonists,  101. 

Belligerent  rights,  204. 

Bentham,  on  peace,  181. 

Berlin  and  Milan  Decrees,  51. 

Bigelow,  John,  on  hostile  tariffs,  74. 

Binney,  Horace,  on  Supreme  Court,  211. 

BleichrSder,  agent  of  Bismarck,  237. 

Bleriot,  flight  of,  178. 

Block,  Jean  de,  284. 

Blockades,  principles  of,  57. 

Board  of  Commissioners,  American  and  Can- 
adian, 32. 

Bodin,  "The  Republic,"  334. 

Boundary  disputes,  in  Supreme  Court,  81, 
263;  of  Peru,  Bolivia,  Ecuador,  154;  at 
the  Hague,  160. 

Bowen  Protocols,  159. 

Brougham,  Lord,  on  Supreme  Court,  211. 

Brown,  Henry  B.,  address  of,  76. 

Brownell,  Captain,  quoted,  256. 

Brussels,  Bureau  of  the  Inter-Parliamentary 
Union,  358. 

Burke,  on  conciliation,  129;  English  court 
practice,  143;  jurisprudence,  207;  judicial 
authority,  213;  lucre,  242. 

Calhoun,  relation  to  War  of  i8ia,  47. 

Caliban,  6. 

Calvin's  ca»e,  no. 

Canada,  attack  on,  15;  concurrence  of,  »8; 
arbitration,  201. 


395 


INDEX 


Canadian  Industrial  Disputes  Investigation 
Act,  279. 

Canning,  on  impressment,  60. 

Carnegie,  Andrew,  address  of,  68;  on  peace 
education,  193;  tribute  to,  191. 

Carter,  James,  C.  on  law,  298. 

Casablanca  incident,  159. 

Castlereagh,  quoted,  51. 

Cato,  quoted,  370. 

Causes  of  war,  10. 

Centenary  of  peace  between  England  and 
the  United  States,  326. 

Centenary  Celebration  Association  of  On- 
tario, 39. 

Central  American  Court  of  Justice,  226. 

Chadwick,  Admiral,  on  Spanish  relations,  67. 

Character  and  military  ideals,  285. 

Charter  of  1606,  provisions  of,  in. 

Chisholm  and  Georgia  case,  165. 

Choate,  Joseph  H.,  address  of,  195;  response 
of,  340. 

Christianity,  influence  of,  103. 

Cicero,  on  law  suits,  206. 

Clay,  Henry  and  War  of  1812,  46. 

Clement,  Edward  H.,  on  results  of  war,  255. 

Cleveland,  Grover,  and  Venezuela,  377. 

Coal-oil  Johnny,  386. 

Cockburn,  Lord,  action  of,  154. 

Cockran,  Bourke,  address  of,  381. 

Codes,  aerial  navigation,  174. 

Commerce  and  armaments,  318. 

Commissions,  services  of,  146;  difficulties 
of,  154;  failures  of,  212. 

Commissioners  for  Trade  and  Plantations, 

122. 

Committee  of  Privy  Council,  122. 

Compensation  for  slaves,  22;  amount  of,  23. 

Concentration  of  effort  upon  judicial  set- 
tlement of  international  disputes,  282. 

Confederation  of  the  United  Colonies  of 
New  England,  118. 

Congress,  successor  of  king  in  council,  133. 

Constant,  on  airships,  172. 

Construction  of  treaties,  160. 

Convention  of  1787,  arbitration  at,  214,  261. 

Cooke,  John  Esten,  quoted,  256. 

Cotton  crop,  worth  of,  384. 

Council  for  New  England,  115. 


Council  of  Trade,  120. 

Council  for  Virginia,  jusridiction  of,  112. 

Courts,  making  of  law  by,  139. 

Cost  of  war,  69,  303;  of  military  power, 
251;  of  American  Civil  War,  254;  of 
armaments,  232;  effect  of  armaments,  239. 

Court  of  Arbitral  Justice,  195,  scheme  for,  199. 

Courts  of  Arbitration,  difficulties  with,  302; 
questions  for,  304;  personnel  of,  91. 

Crosby,  Oscar  T.,  discussion  by,  280. 

Cruc6,  Emeric,  Le  nouveau  Cynie,  187;  on 
arbitration,  77. 

Darwin,  332. 

Declaratory  Act  of  Parliament,  128. 

Decisions  of  international  commissions,  150. 

Declaration  of  Independence,  131. 

Defects  of  arbitration,  275. 

Deferred  war  debt,  240;  stability  for,  242. 

Definitive  Treaty  of  Peace,  1783,  17. 

Development  of  the  American  doctrine  of 
jurisdiction  of  courts  over  States,  100. 

Difficulties  in  the  way  of  the  success  of  our 
object,  162. 

Diplomacy,  in  Spanish  War,  67;  in  inter- 
national disputes,  296,  300;  pathway  of, 

365. 

Division  of  powers,  133. 
Dogger  Bank  Commission  66,  192. 
Dorr's  Rebellion  and  the  Supreme  Court,  214. 
Dowling,  Bartholomew,  quoted,  256. 
Dred  Scott  case,  89. 
Duels,  in  Germany,  71;  in  Lutheran  Church, 

72. 
Dunant,  Henri,  and  Red  Cross  Association, 

245- 

Duras,  V.  H.,  discussion  by,  399. 

Economic  ideas  of  the  American  colonies,  103. 

Eleventh  Amendment,  267. 

Eliot,  Charles  W.,  address  of,  275;  discus- 
sion by,  327. 

Ellsworth,  on  allegiance,  61. 

Emerson,  on  Adam  Smith,  375. 

Enforcement,  of  decrees  of  an  international 
court,  92;  of  international  judgments,  225. 

England  and  military  power,  371-72. 

English  court  practice,  143- 

Evolution  of  the  International  Court,  222. 

Exemption  of  private  property  at  sea,  197. 


INDEX 


397 


Fisheries,  arbitration  of,  22,  28. 
Treaty  of  1818  and,  22. 

Foster,  John  W.,  address  of,  44;  family  of, 
44n. 

Foulke,  W.  D.,  address  of  282. 

France  and  military  power,  371. 

Franklin,  on  war  bills,  256. 

From  diplomacy  to  war,  300. 

Fugitive  Slave  Law,  270. 

From  war  to  peace.  331, 

Gadow,  Dr.  Hans,  quoted,  254. 

General  Arbitration  Treaty,  27,  29. 

Geneva  Arbitration,  feeling  of  English  arbi- 
trator in,  146. 

Geneva  Commission,  148. 

George,  Lloyd,  on  taxation,  273. 

Germany,  military  power  of,  250;  peace 
attitude  of,  284;  German  Emperor  and 
peace  of,  42. 

Gibbons,  James  Cardinal,  invocation  by,  i. 

Ginn,  Edwin,  address  of,  313. 

Grand  Manan,  title  to,  20. 

Grant,  F.  D.,  response  of,  348. 

Grant,  U.  S.,  a  military  review,  70;  war  with 
Mexico,  65;  on  peace  court,  330;  letter 
of,  348,  on  peace,  351. 

Great  Design,  335. 

Great  Lakes,  warships  in,  30. 

Greece,  military  power  of,  370. 

Gregory,  Charles  N.,  address  of,  168. 

Grisbadarna  case,  155. 

Grotius,  work  of,  77,  334,  375;  on  hegemony, 
102;  on  arbitration,  187;  life  of,  189. 

Grundy,  and  War  of  1812,  46. 

Hague  Conference,  air  craft  at,  169;  arma- 
ment limitations  at,  343;  agreement  at, 
345;  circular  for,  335;  explosives,  178; 
meeting  of,  191,  344,  346;  international 
kw  at,  275;  results  of,  193,  297. 

Hague  Tribunal,  difficulties  of,  97;  expenses 
of,  98;  good  of,  366. 

Hall  on  allegiance,  60. 

Halpine,  Colonel,  quoted,  255. 

Hamilton  on  Supreme  Court,  215. 

Hartford  arbitration  of  1650,  223. 

Hay,  John,  circular  of,  192. 

Hearne,  R.  P.,  "Aerial  Warfare,"  168,  178. 
1 80. 


Heredity,  influence  of,  243. 

Henry  IV  and  the  "Great  Design,"  335. 

Herbert,  H.  A.,  discussion  by,  306. 

Hirst,  F.  W.,  address  of,  202;  on  arbitration, 

229. 

Hobbes,  quoted,  362. 
Hoffman,  Tales  of,  7. 
Holland,  as  an  international  host,  186. 
Hudson's  Bay  Company,  award  to,  24. 
Human  nature  and  peace,  357. 
Importance  of  judicial  settlement,  9. 
Impressment  of  seamen,  in  War  of  1812,  55, 

57;  Great  Britain  and,  58. 
Increased  cost  of  living,  273. 
International  arbitration,  prize  court  in, 

163;  objections  to,  276. 
International  Congress,  322. 
International    Court    of   Appeals    in    prize 

cases,  198. 

International  Court,  conditions  for,  6;  char- 
acter of,  13;  Choate  on,  340;  draft  of,  8; 

enforcement   by,   92;   evolution   of   222; 

permanence    of,    3;    principles    of,    207; 

home  of,  189. 

International    Joint    Commission,    29,    32. 
International  law,  decisions  of  international 

commissioners  in,  150;  Hall  on,  60;  home 

of,   189;  nature  of,  309;  scope  of,  208; 

Supreme  Court  and,  259. 
International  Prize  Court,  352. 
International  relations  between  the  United 

States  and  Canada,  14. 
International  School  of  Peace,  313-318. 
International  Sugar  Commission,  226. 
International    Supreme    Court    and    U.    S. 

Supreme  Court,  137. 
Inter-Parliamentary  Union,  358. 
Interstate    controversies    in    the    Supreme 

Court  of  the  United  States,  76. 
Invisible  Empire,  238,241. 
Invocation,  t. 
James,  William,  quoted,  7. 
Japan,  military  power  of,  249. 
Japanese  House  Tax,  commission  on,  145; 

dissent  of  Japanese  commission  on,    155. 
Jay  Treaty,  articles  of ,  18;  arbitration  in,  152. 
Johnson,  Dr.,  quoted. 
Jordan,  D.  S.,  address  of,  234;  cited,  320. 


398 


INDEX 


Juan  de  Fuca,  island  of,  34. 
Judiciary  Act  of  1789,  219. 
Judson,  F.  N.,  address  of,  258. 
Judson,  H.  P.,  address  of,  300. 
Jurisdiction  of  the  Supreme  Court,  258-275; 

over  boundaries,  81. 
Jusserand,  J.  J.,  address  of,  331. 
Justice,  375. 

Kennedy,  C.  on  commissions,  147. 
Kent,  on  allegiance,  61. 
Keewatin  boundary,  37. 
Khan,  Mirza  Ali  Kuli,  discussion  by,  310. 
King  in  Council,  jurisdiction  of,  119,  125; 

theory  of,  106. 
Kipling,  quoted,  251,  253. 
Knapp,  Arthur, "  Feudal  and  Modern  Japan," 

248. 

Labor  unions  and  strikes,  233. 
La  Puenta,  quoted,  248. 
Lamarck,  work  of,  332. 
Laud,  ideas  of,  116. 
Law,  idea  of,  135;  exposition  of,  i38;precedent 

in,  149;  nature  of,  298. 
Law  of  probability,  253. 
Law  and  public  opinion,  270. 
Lawrence,  T.  J.,  quoted,  298. 
Lincoln,  on  slavery,  70,  373. 
Limitation,  of  armaments,  343 
Littleton,  M.  W.,  response  of,  359. 
Lockwood,  Mrs.  Belva,  discussion  by,  99,  310. 
London  Conference,  225. 
London  Times,  comment  of,  195. 
Loo  Choo  question,  349. 
Loomis,  F.  B.,  address  by,  228. 
Loreburn,  Lord  Chancellor,  on  arbitration, 

203. 

Loudon,  J.  J.,  address  of,  186. 
Macfarland,  H.  B.  F.,  address  of,  162. 
Madison  and  the  War  of  1812,  47. 
Magenta,  color  of,  245. 
Mahan,  Admiral,  "Sea  Power  in  its  Relations 

to  the  War  of  1812,"  45,  57,  58,  62,  63. 
Maine,  Sir  Henry,  on  Supreme  Court,  211. 
Maine,  explosion  of  the,  66. 
Marburg,  Theodore,  Presiding  Officer,  72, 

99,  162;  address  of,  72;  discussion  by,  292, 
Marshall,  leadership  of,  80;  on  blockade,  57. 
Massachusetts  Bay  Company,  115. 


Massachusetts  in  the  Civil  War,  255. 
McKenney,  F.  D.,  address  of,  94. 
McKinley,  President,  in  Spanish  War,  67. 
McMaster,  on  War  of  1812,  45-50. 
Mediation  in  international  disputes,   297. 
Memorial  tablets  in  England,  251. 
Mercantile  System,  127. 
Methods  for  the  settlement  of  international 

disputes,  294. 
Mexican  War,  44. 
Mill,  J.  S.,  on  Supreme  Court,  211. 
Milton,  quoted,  145. 
Miranda,  6. 

Monroe,  Secretary,  and  War  of  1812,  52. 
Montague,  A.  J.,  address  of,  210. 
Montaigne,  on  war,  333. 
More,  on  Utopians  and  war,  338. 
Muravieff,  note  of,  188. 
Napoleon,  retreat  of,  246;  enemy  of  America, 

53;  Fulton's  steamboat  and,  171. 
Nationals,   on  commissions  and   tribunals, 

155,  157. 

Naturalization  and  allegiance,  59;  Hall  on,  60. 
Navigation  Act,  121. 
Neutral  obligations,  63. 
Neutrals,  rights  of,  204. 
Neutralization  of  territory,  286. 
New  mission  of  America,  362. 
New  York  Evening  Post,  342. 
Nicholas  II.,  Peace  Conference  and,  188,  341, 

376;  Arbitral  Tribunal  and,  376. 
Nobel,  Andrew,  peace  prize  of,  185;  letter 

of,  341. 

Nominating  Committee,  93. 
Novara,  battlefield  of,  245. 
Objections  to  the  present  Hague  Court,  94. 
Olney-Pauncefote  Treaty,  29. 
Orders  in  Council,  49,  54,  55. 
Orinoco  Steamship  Company,  287. 
Page  T.  N.,  address  of,  362. 
Pan-American  Bureau,  182. 
Panama  at  Hague  Conference,  196. 
Panama  Canal,  384;  fortification  of,  353. 
Paris  Commission,  148. 
Pascal,  on  war,  334. 
Pasteur,  cited,  333. 
Peace,  education  and,   231;  price  of,   228. 

through  law,  235. 


INDEX 


399 


Peace  Sunday,  226. 

Perm,  plan  of,  123;  case  of  Lord  Baltimore 

and,  125. 

Pinkney,  on  Supreme  Court,  211. 
Pious  Funds  case,  5,  155. 
Polk,  President,  Mexican  dispute  and,  64. 
Pollock,  Sir  Frederick,  on  law  of  nations,  217. 
Popular  government  as  the  solution  of  war, 

359- 

Porter  and  Barclay  Boundary,  21. 
Postnati,  case  of  the,  109. 
Power  of  Supreme  Court,  135. 
Precedent  in  law,  149. 
Price  of  peace,  228. 
Private  property  at  sea,  197. 
Public  opinion,  arbitration  and,  92;  law  and, 

270. 

Puget's  Sound  Agricultural  Company,   24. 
Questions  for  settlement  at  The  Hague,  160. 
Quetelet,  law  of  probability  of,  253. 
Ralston,  J.  H.,  address  of,  151. 
Randolph,  John,  on  War  of  1812,  47. 
Reciprocity  Treaty  of  1854,  15,  23. 
Red  Cross  Association,  245. 
Reduction  of  armaments,  295,  318. 
Richet,  on  airships,  173. 
Report  of  committee  on  nominations,  291. 
Representative  colonial  assemblies,    103. 
Restoration  of  possessions,  21. 
Restitution  for  confiscated  property,  19. 
Rhode  Island  and  Massachusetts  boundary, 

81. 

Rhodes,  J.  F.,  on  Mexican  War,  65. 
Riddell,  W.  R.,  address  of,  14;  discussion  by, 

307,  328;  on  procedure  in  law,  149. 
Rise  in  prices,  382;  part  played  by  tariffs 

and  cost  of  armaments  in,  383. 
Rivers  as  boundaries,  82. 
Rome,  military  power  of,  369. 
Roosevelt,  Theodore,  initiation  of,  192;  on 

peace,  222. 
Root,  Elihu,  address  of,  9;  on  public  opinion, 

166;  on  agreement,  338. 
Rothschild,  Nathan,  work  of,  237. 
Rush-Bagot  arrangement,  29. 
St.  Croix  boundary,  17. 
St.  Pierre  "Perpetual  Peace,"  334. 
Schiller,  on  war,  256. 


Schouler,  cited,  47. 

Schurz,  Carl,  "Life  of  Henry  Clay,"  46. 

Scott,  J.  B.,  address  of,  2;  Presiding  Officer, 
i,  8,  14,  40,  43;  president,  68,  182,  330; 
remarks  of,  182. 

Seal  Fishery  Arbitration,  26,  148. 

Seeck,  Otto,  "Downfall  of  the  Ancient 
World,"  244. 

Sherman,  quoted,  70. 

Slavery  agitation,  283. 

Smith,  Goldwin,  on  War  of  1812,  48,  54; 
on  war  burdens,  238. 

Snow,  A.  H.,  address  of,  100. 

Some  considerations  as  to  international 
arbitral  courts,  151. 

Some  things  that  must  be  done,  313. 

Some  reasons  for  judicial  methods  of  set- 
tlement, 294. 

Sophocles,  quoted,  255. 

Sovereignty,  state,  and  arbitration,  151. 

Spain,  military  power  of  371;  government  by, 

112. 

Spanish  War,  66-67. 

Stamp  Act,  128. 

Stare  dccisis,  theory  of  144;  use  of,  149. 

Stewart,  J.  A.,  address  of,  326. 

Stockton,  Charles,  address  of,  294. 

Storey,  Justice,  on  allegiance,  61. 

Storey,  Moorfield,  on  Geneva  Tribunal, 
147. 

Straus,  Oscar  S.,  presiding  officer,  182,  104, 
201,  221;  address  of,  183. 

Strikes  as  a  mode  of  war,  233. 

Study  of  history,  317. 

Suppression  of  African  slave  trade,  24. 

Supreme  Court,  United  States,  establish- 
ment of,  78;  relation  to  States  of,  36,  81, 
263;  jurisdiction  of,  214,  270,  271;  devel- 
opment of  doctrine  of  jurisdiction  of, 
100-138;  exposition  of  universal  law  by, 
135-138;  international  law  and,  218,  259; 
prototype  of  international  court  in,  164, 
210-221. 

Taft,  President,  address  of,  351. 

Taney,  on  Supreme  Court,  271;  on  Rhode 
Island  boundary,  74. 

Tariffs  as  the  causes  of  war,  74. 

Taxation  of  bridges  between  States,  84. 


TX 


400 


INDEX 


Thucydides,  on  arbitration,  77. 

Tocqueville,  on  Supreme  Court,  211;  on 
equality,  333. 

Toledo  War,  89. 

Treaty  of  Arbitration,  1908,  articles  of,  27. 

Treaty  of  Ghent,  boundary  disputes  set- 
tled by,  20. 

Treaty  of  1794,  joint-survey  in,  18. 

Treaty  of  1802,  article  in  of,  19. 

Treaty  of  1846,  boundary  in,  25. 

Treaty  of  Washington,  articles  of,  24;  action 
of  nationals  under,  156. 

Turkey,  revolution  in,  184. 

Tyler,  President,  on  Mexican  disputes,  64. 

United  Empire  Loyalists,  19. 

University  of  Leyden,  190. 

Vancouver  Island  boundary,  26. 

Vattell,  cited,  375. 

Venable,  Dr.,  on  alumni  slain,  254. 

Visit  and  search  of  vessels,  59;  Jefferson  and 
Madison  on,  61;  abandonment  by  Great 
Britain  of,  62. 

Wambaugh,  Eugene,  address  of,  139;  dis- 
cussion by,  150. 

War  and  its  cost,  303. 


War,  causes  of,  303;  cost  of,  10. 

War  of  1812,  causes  of,  45-63;  international 

law  and,  63;  cited  authorities  on,  45,  46, 

47,  48. 

War  to  peace,  331. 
Washington,  Booker  T.,  quoted,  241. 
Washington,  George,  letter  of,  339. 
Waste  of  war,  234. 
Waterways  Treaty  of  1909,  29. 
Were  the  questions  involved  in  the  foreign 

wars  of  the  United  States  suitable  for 

arbitration,  44. 

Wheeler,  B.  I.,  address  of,  40. 
Why  the  growth  of  law  is  aided  by  courts 

more  than  by  commissions,  139. 
Wilson,  Woodrow,  on  War  of  1812,48,55,  62 
Webster,  on  Supreme  Court,  211,  262. 
Webster-Ashburton  negotiations,  61. 
Woodford,  S.  L.,  Toastmaster,  330;  address 

of,  330;  on  Spanish  relations,  66. 
World  Peace  Foundation,  325. 
Wheat,  worth  of,  384. 
Wycliffe,  on  truth,  340. 
Wyoming    Valley,    claims    of    Connecticut 

and  Pennsylvania  to,  79-80. 


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